The UN Protocol to prevent, suppress and punish trafficking,29 otherwise known as the
‘Palermo Protocol’ is the first international instrument to define and address trafficking.
Article 3 of the Protocol that mainly concerned itself with penalising and deterring traffickers defines trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat, force, abduction, fraud, deception, abuse of power or of a position of vulnerability. Although Article 6 obliged signatory States to provide assistance and protect the victims of trafficking in persons, this provision is often ignored (UN, 2001). Realising that trafficking of the person may involve one or more perpetrators or organised criminals, the UN adopted Convention against Transnational Organised Crime as a legal framework in the fight against transnational organised crime such as trafficking.30 The protocol did not discuss the mechanism through which victims of trafficking could be assisted but, annex to the United Nations Global Plan of Action to Combat Trafficking in Persons obliges member States to take positive steps in promoting the human rights of the
28
http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTR Y_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3084706,102651,United%20Kingdom,2012 last accessed August 5, 2015
29 UN: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organised Crime, United Nations, Treaty Series, vol.
2237, p. 319; Doc. A/55/383, 15 November 2000
30 UN General Assembly, United Nations Convention against Transnational Organised Crime, A/RES/55/25, 8 January 2001
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victim of trafficking.31 So is a series of Organisation for Security and Co-operation in Europe (OSCE) publications.32 The scale of trafficking for domestic servitude is unknown and extremely difficult to assess.33 According to the OSCE (2008) the difficulty in assessing the scale of human trafficking for labour purposes is partly because domestic servitude is mostly undocumented in many OSCE participating States. Further, trafficking for domestic servitude covers a range of situations, all of which share features such as: forced labour, obligation to provide work for a private individual, low or no salary, no days off, psychological and/or physical violence, limited or restricted freedom of movement, and the impossibility of a private life. The OSCE has also observed that most of the signatory States do not have laws, which recognise, regulate, and clarify the professional status of domestic workers; and that cultural context often plays a major role in the way in which States tackle issues relating to this group of workers. The OSCE Permanent Council considers human trafficking as an abhorrent violation of the dignity and rights of human beings.34 The council was concerned that the UN instrument aimed at punishing traffickers has so far not yielded satisfactory results and the root causes of trafficking in human beings has not been adequately tackled, if at all. The Council decided to incorporate best practices and an advanced approach into its anti-trafficking policies, and facilitate cooperation among participating States by adopting an Action Plan to Combat Trafficking in Human Beings.
31 UN General Assembly, United Nations Global Plan of Action to Combat Trafficking in Persons, Sixty-fourth session, A/RES/64/293, 12 Aug 2010
32 OSCE Ministerial Council, Decision No. 14/06 Enhancing Efforts to Combat Trafficking in Human Beings, Including for Labour Exploitation, through a Comprehensive and Proactive Approach, MC.DEC/14/06 (Brussels, 5 December 2006); OSCE Ministerial Council, Decision No. 8/07 Combating Trafficking in Human Beings for Labour Exploitation, MC.DEC/8/07 (Madrid, 30 November 2007); OSCE Ministerial Council, Decision No. 5/08 Enhancing Criminal Justice Responses to Trafficking in Human Beings through a Comprehensive Approach (Helsinki, 2008).
33 OSCE Report of the Tenth Alliance against Trafficking in Persons Conference - “Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude”, Vienna, 17-18 June 2010, Research Paper on Trafficking in Human Beings for Domestic Servitude in the OSCE Region: Analysis and Challenges, Vienna:
OSCE/ Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2010
34 See OSCE, Permanent Council, Decision No. 557 Action Plan to Combat Trafficking in Human Beings, 462nd Plenary Meeting, PC.DEC/557, 24 July 2003
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The Council anticipated this comprehensive toolkit will act as a multidimensional approach to combating trafficking, addressing the problem comprehensively whilst protecting victims.
Every signatory States to the Council are obliged to enact measures that would allow for the swift identification of victims of trafficking and provide them with necessary assistance rather than applying the criminal codes to their treatment. Identifying victims of trafficking require specialised skills. 35 Determined to improve on the efforts to identifying and assisting victims of human trafficking taking into account especially the vulnerable,36 the OSCE stressed the importance of developing and applying measures capable of improving labour practices and promoting the effective enforcement of internationally recognised labour rights.
All these, the OSCE suggested could be achieved through adequate and effctive labour inspections, monitoring of private employment agencies, and the development of programmes to support workers in exercising their labour rights. With a view to tackling human trafficking from the grassroots, OSCE suggested the promotion of awareness-raising campaigns aimed at persons at risk of being trafficked and addressing the social, economic, cultural, political, and other factors that contribute to the vulnerability of being trafficked.
The principle in the Palermo protocol has been incorporated into the Council of Europe Convention on Action against Trafficking in Human Beings.37 Article 1 of the Convention asserts the council's determination to prevent and combat trafficking in human beings,38 whilst guaranteeing gender equality through a comprehensive framework for the allows for the protection and assistance of victims and witnesses, whilst guaranteeing gender equality, as well as ensuring effective investigation and prosecution of the traffickers.
35 UN OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1 (2002). Office of the High Commission for Human Rights, Guideline 2
36 OSCE Ministerial Declaration on Combating all Forms of Human Trafficking, MC.DOC/1/11/Corr.1, 7 December 2011
37 Council of Europe Convention on Action against Trafficking in Human Beings, CETS No.: 197, Warsaw 16.05.05
38 The Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) Warsaw:
Council of Europe, 16.V.2005
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Within Article 10, Member States are obliged to provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, and identifying and helping victims. Articles 11 – 13 oblige member States to protect, assist and allow the victims of trafficking a period of reflection. Under Article 14, Member States must issue a renewable residence permit to victims of trafficking where the competent authority has considered that their stay is necessary owing to their personal situation; and or for the purpose of their co-operation with the competent authorities in investigations or criminal proceedings. Member States are obliged within Article 15 of the Convention to provide the victims of trafficking with an access to compensation and legal redress.
Significantly, Article 26 of the Convention obliges Member States not to impose penalties on victims of trafficking for their involvement in unlawful activities, to the extent that they have been compelled to do so. The provisions of this Convention were formerly incorporated within the Council Framework Decision 2002/629/JHA,39 has been replaced by Directive 2011/36/EU.40 This Directive sets out minimum standards to be applied throughout the European Union in preventing and combating human trafficking and protecting the victims.
The UK signed the Council of Europe Convention on Action against Trafficking in Human Beings on 23 March 2007 and implemented it on 1st April 2009. The Government also opted-in Directive 2011/36/EU opted-in July 2011. In lopted-ine with the UK Government obligation under Article 10 of the Council of Europe Anti-Trafficking Convention, the UK Human Trafficking Centre (‘‘UKHTC’’) was established at the South Yorkshire police and began operations in 2006. The UKHTC, which acts as a central repository for human trafficking intelligence and provides tactical advice to Police forces undertaking human trafficking operations across the UK, works closely with the human trafficking policy team in the Home Office, collect data on potential victims of trafficking (‘‘PVoT’’).
39 OJ L 203, 1.8.2002, p. 1-4
40 OJ L 101, 15.4.2011, p.1
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It also acts as a competent body of the National Referral Mechanism (NRM), which the Government established in 2009. Since 7th October 2013, the UKHTC had become part of, and funded through the NCA general budget. 41 The NRM is intended to provide a way for all agencies such as the police, the UK Border Agency, local authorities and Non-Governmental Organisations to cooperate, share information about potential victims, identify those victims and facilitate their access to advice, accommodation and support. However, the Government has conceded that the hidden nature of trafficking makes it difficult to gain an accurate picture of its true scale and nature.42 The invisible nature of those trafficked to work in the private households remained a major problem.43 Although the UK Government has reported that the NRM assisted it in dealing with trafficking issues, it conceded more still needs to be done on the identification and the treatment of the victims, as well as bringing the traffickers to justice.44 In the view of the Crown Prosecution Services (‘‘CPS’)’in England and Wales, there is no definitive definition of a trafficked victim, but the key feature that prosecutors should look for is whether the trafficked victims lose their freedom to the extent that they could not escape their captors.45 But, it remained unclear whether the CPS meant a person who is not physically restrained by the abuser may not qualify as a victim of trafficking. Not suprising both the Bar Council and the Law Society have argued rather than the law concentrating on the traffickers, the vulnerable individuals who have been trafficked to the UK were targeted.46
41 House of Common, Daily Hansard – Written Answers, 3 Jun 2013: Column 896 – 920W
42 Home Office – Human Trafficking: The Government’s Strategy, London: HM Government, 2011.
http://www.homeoffice.gov.uk/publications/crime/human-trafficking-strategy?view=Binary Last accessed August 12, 2015
43 See OSCE Report of the Tenth Alliance against Trafficking in Persons Conference - “Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude”, Vienna: OSCE / Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2010
44 Home Office – First annual report of the Inter-Departmental Ministerial Group on Human Trafficking, Cm 8421, October 2012. p. 33 – 36
45 UK Crown Prosecution Services, Human Trafficking and Smuggling, available online.
http://www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling/ last accessed August 8, 2015
46 The Law Society, Criminal prosecutions of victims of trafficking, 6 October 2011, http://www.lawsociety.org.uk/advice/practice-notes/victims-of-trafficking/ last accessed August 10, 2015
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One of the key problems with prosecuting victims of trafficking is the inability of the crown prosecution services, the Police, and or the Home office to find them credible as genuine victims of trafficking.47 In R v Ajayi,48 the Court of Appeal commented: ‘‘we accept that a person who has been trafficked may give different accounts, or be understood to have given different accounts, for various reasons; there may be problems of translation; there may be problems occasioned by trauma; or one may have a situation in which somebody who is a genuine victim glosses the story in order to make it more believable’’. It follows that just because a victim change his/her initial story or there being a gap in the story is not enough to rule that he/she is not credible. The competent authority needs to consider the individual’s case carefully. Perhaps the reason why finding a victim of trafficking credible is problematic for the Home Office and/or the Prosecution is that such finding would trigger the eligibility of the victim to humanitarian protection; hence a form of residence permit. In L, HVN, THN and T v R (Children’s Commissioner for England and the Equality and Human Rights Commission intervening),49 the Court of Appeal quashed the convictions of the four young Vietnamese who had been trafficked and forced to work in cannabis factories. Lord Justice Moses, the Lord Chief Justice of England and Wales commented that the law on trafficking for labour exploitation is well established in Siliadin v France (Application No 73316/01, 26 October 2004); Rantsev v Cyprus and Russia (Application No 25965/05, 10 January 2010); R v K(S) [2013] QB 82, and R v Connors [2013] EWCA Crim. 324. In the Lord Chief Justice view, the key principle has been clearly stated at paras [2]-[6] of R v N; R v L [2013] QB 379:
Every vulnerable victim of exploitation will be protected by the criminal law … there is no victim, so vulnerable to exploitation, that he or she somehow becomes invisible or unknown to or somehow beyond the protection of the law. Exploitation of fellow human beings … represents deliberate degrading of a fellow human being or human beings. 50
47 See Home Office – First annual report of the Inter-Departmental Ministerial Group on Human Trafficking, Cm 8421, October 2012. p.37
48 [2010] EWCA Crim 471
49 L, HVN, THN and T v R [2013] EWCA Crim 991
50 L, HVN, THN and T v R [2013] EWCA Crim 991, para 12
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In addition to those who have been trafficked and have entered the UK without any document, or the proper immigration document, whereby making them undocumented and prone to domestic servitude; those who are working on a valid ODWs visa, may also be victims of trafficking if the employer has lied to them about the nature of the job and their entitlement.51 Realizing the defects in the protection of domestic workers, Government introduced the Modern Slavery |Act 2015, c.30. However, the law has been heavily criticised as a lost of opportunity in the protection of the workers because it failed to allow domestic workers the chance to change employer (ILPA, 2015; Kalayaan, 2015); a sticking point that was strongly debated throughout the enactment of the law. However, rather thn waiting until 2009 before the current ODWs visa s reviewed, the Government commissioned which report was expected in \july 2015, but is yet to be made available.