Punishment replicates and perpetuates trafficked persons’ experiences under
exploitation. The punishment of trafficked persons contradicts the UK government’s rhetoric on trafficking in persons and the response to those affected. Trafficked
195 persons who are punished by the State for immigration offences or for offences they were compelled to commit are not treated as people who have suffered an ‘evil’ and ‘brutal’ crime which ‘destroys lives.’ This punishment contradicts the principles of a genuine human rights approach and the rights and fundamental purposes of the CAT. Article 1.b of the CAT explains the purposes of the CAT are to,
protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution (Appendix A)
Punishment violates these purposes because it means people are treated as defendants and criminals not ‘victims and witnesses.’ Trafficked persons who are punished are denied their right to legal remedy (Gallagher and Holmes. 2008. p331). Responding to trafficked persons as defendants rather than as witnesses harms the States interests to see traffickers convicted and contradicts the purpose of the CAT for effective investigation of traffickers leading to their prosecution (Special
Representative and Co-ordinator for Combating Trafficking in Human Beings. 2013. p32). A solicitor interviewed for the fieldwork research explained how such
treatment prevents people supporting investigations and proceedings against their traffickers,
because these people are being punished there is no intelligence . . . If you just do a raid, that’s it, told to plead guilty, you’re never ever going to get any information (Appendix B. Interviewee 32).
In one of the cases of Vietnamese nationals convicted for cannabis cultivation a QC sentenced a woman to twelve months in prison whose case highlighted multiple indicators she had been trafficked. In sentencing the QC declared, “You were cruelly exploited by wicked criminals who used you. . . I only wish the wicked people who exploited you were in the dock with you” (Rychlikova. 2010).
The QC appears not to recognise that the prosecution and conviction of this woman tremendously undermined the possibility of prosecuting and convicting the ‘wicked people’ who exploited the defendant. Punishing those who have suffered human rights violations gives impunity to those who commit human rights violations. Punishment excludes people from the rights required by the CAT. Trafficked persons who are punished are denied the right to a reflection period required by Article 13.1
196 of the CAT. Punishment also excludes people from claiming their Article 12 rights. Trafficked persons who should be housed in specialist supported accommodation are instead forced to live in prisons and detention centres. These are grossly
inappropriate environments for reflection and recovery from physical and psychological trauma. Punishment makes the psychological support required by Article 12 inaccessible. Punishment means the State re-traumatises trafficked persons and forces them to suffer additional psychological harm when it should be providing support and protecting their human rights. In 2012 208 detainees in immigration detention centres required medical assistance as a result of self-harm. (No Deportations. 2012) An interviewee argued that the State had re-traumatised a trafficked woman by punishing her,
I`m very concerned about this woman she has been treated very, very, badly by her original traffickers but she has certainly been re-traumatised by the way she was treated in the prison system and [immigration detention centre] (Appendix B. Interviewee 7).
A 2012 report by the Prison Reform Trust highlights the case of a Nigerian woman trafficked to the UK for sexual exploitation who spent seven months in immigration detention for overstaying on her visa before being moved to HMP Holloway for ‘disturbing behaviour’ (Prison Reform Trust. 2012. p12). A support worker with experience working with trafficked women in prison and detention explained the negative impact of these environments on the women’s mental health,
psychologically the women become more and more and more distressed and often time when I am waiting for decisions or waiting for information or I`m calling competent authorities or calling case owners I`m just saying, I try to explain that this women, this is a really stressful situation you have her in she’s come from one stressful situation to another and you can imagine how she is deteriorating rapidly and yeah you see a lot of deterioration in their mental health (Appendix B. Interviewee 5).
An interviewee from a charity supporting women in prison explained the reaction of a non-EEA woman trafficked to the UK who was sentenced to one year
imprisonment for possessing false documents,
she was very angry, she was a very disruptive person, the anger was taking over everything because she couldn’t believe she was treated that way
(Appendix B. Interviewee 34).
Lord McColl describes the significant additional harm that trafficked persons suffer by being punished,
197 There is arguably one thing that is worse than being trafficked and that is being trafficked and then caught committing a criminal offence under duress, for which one is then prosecuted. In such situations, the victims of trafficking must feel that the whole world is against them, as first they feel the wrath of the traffickers—the law-breakers—and then they feel the wrath of the state, the law-enforcer. In this context, far from compounding the trauma of victims of trafficking, the state should seek to help. Tragically, however, what is
actually happening is that victims of trafficking are being pushed into the second trauma of prosecution
An interviewee from a support organisation described how being punished by the State resembles the trafficking experience,
It can replicate the situation they’ve come from. So they’ve come from a situation where they’ve been controlled either physically or psychologically maybe they were locked in maybe they weren’t and they’re coming to a
situation where they don’t have their freedom and they are once again locked in so obviously that’s very stressful (Appendix B. Interviewee 14).
Trafficked persons who are sent to prison or immigration detention centres are ‘rescued’ from one form of imprisonment and control only to have it replaced with another. A 2012 joint report by HM Chief Inspectorate of Prisons and the
Independent Chief Inspector of Borders and Immigration highlights the case of a trafficked male known only as Mr L who was trafficked to the UK aged sixteen for the purpose of cultivating cannabis. In 2009 aged seventeen he received a twenty month prison sentence for the production of a Class B drug. In September 2009 a
competent authority officially recognised him as having been trafficked. Despite this Mr L was not released until March 2010 when he had completed his prison sentence. Following his departure from prison he was immediately detained. He was
interviewed by researchers for the joint report in June 2011. At that time he had spent fifteen months in immigration detention. When interviewed by researchers he explained, “I feel my life is passing me by. I want to set up my own life. Until now it has been controlled by traffickers and prison staff’” (HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration. 2012. p18). This young man who had endured violations of his human rights by having been trafficked
198