Human Trafficking, Victims’ Rights and Fair Trials
| Author | Shahrzad Fouladvand,Tony Ward |
| Published date | 01 April 2018 |
| Date | 01 April 2018 |
| DOI | http://doi.org/10.1177/0022018318761680 |
| Subject Matter | Articles |
Article
Human Trafficking, Victims’
Rights and Fair Trials
Tony Ward
Northumbria University, UK
Shahrzad Fouladvand
University of Sussex, UK
Abstract
Cases of human trafficking are known to be difficult to prosecute. In this article we identify
several issues in the law of evidence that may contribute to these difficulties. We argue for the
victims’ rights as an important factor in evidential decisions, coupled with an insistence that
such rights cannot trump the defendant’s right to a fair trial. Restrictions on evidence of a
witness’s bad character or sexual history should not be interpreted in such a way as to prevent
the defence from introducing evidence, or asking questions, that are of substantial probative
value, even if they are potentially distressing to witnesses; but such evidence and questioning
should be limited to what is necessary for a fair trial. The protection of victims and witnesses
may also justify a relatively flexible approach to the admission of hearsay evidence, which avoids
prejudging the truth of a witness’s evidence in order to establish that s/he is in fear.
Keywords
Human trafficking, vulnerable witnesses, victims’ rights, character evidence, hearsay evidence
Introduction
Cases of human trafficking are frequently difficult to prosecute and raise a number of issues in the law of
evidence. Human trafficking, now defined by the Modern Slavery Act 2015, s. 2, involves arranging or
facilitating the travel (to, from or within any country) of another person with a view to their being
exploited; the exploitation may involve a sexual offence, servitude or forced labour, or otherwise
coercing or deceiving the person into providing some service or benefit.
1
According to a recent report
by the National Audit Office (NAO), only 6 per cent of the offences under the Modern Slavery Act 2015
recorded in the year to the end of March 2017 resulted in a charge or summons. More than a quarter (27
Corresponding author:
Tony Ward, Northumbria University, Law School, City Campus East, Newcastle upon Tyne NE1 8ST, UK.
E-mail: tony.ward@northumbria.ac.uk
1. Modern Slavery Act 2015 ss 2, 3.
The Journal of Criminal Law
2018, Vol. 82(2) 138–155
ªThe Author(s) 2018
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DOI: 10.1177/0022018318761680
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per cent) were recorded by the CPS ‘as having evidential difficulties’. The CPS and the police are
reported to be investigating the reasons why cases are not meeting the evidential threshold for prosecu-
tion.
2
Prosecutors interviewed by the NAO pointed to variable levels of investigation and case-building
by the police and to difficulties in identifying perpetrators, gathering sufficient evidence, and ‘victims
agreeing to act as witnesses and then being available for the trial’.
3
It is unclear how far the law of evidence, as opposed to the practical difficulties of evidence
gathering, contributes to the difficulties of prosecuting human trafficking cases. In this article, we
identify several aspects of the law relating to character evidence, sexual history evidence, witness
anonymity and hearsay which appear to raise potential difficulties in trafficking cases, or which have
in fact done so in cases that have reached the Court of Appeal. Our starting point is a recognition of
victims’ rights as an important factor in evidential decisions, coupled with an insistence that victims’
rights cannot trump the defendant’s right to a fair trial. We refer to victims’ rights not be cause we
equate complainants with victims but because it is actual victims, those whose human rights (partic-
ularly to freedom from servitude) have in fact been violated, who are the intended beneficiaries of
these rights.
4
Complainants who are not in fact victims also have some rights—for example, that their
lives should not be endangered—but they are primarily the unintended beneficiaries of the duties of
the state towards victims.
The body of this article is in two parts. The first discusses the position of the victim in relation to the
investigation, prevention and prosecution of human trafficking, with particular emphasis on the rights of
traffickingvictims, and victims in general, underhuman rights law and EU law. The second part considers
the tensions thatarise within the domestic law of evidencebetween the protection of (alleged) victims and
the defendant’sright to a fair trial. We argue that protection of victimsdoes not justify curtailing therights
of defendants to introduce evidence, or ask questions in cross-examination, of potentially substantial
probative value,however distressing they may be.The protection of victims and witnesses does, however,
justify a relatively flexible approach to the admission of hearsay evidence. There is a dearth of research on
how the law of hearsay—ormost of the other rules we discuss—areapplied in practice, either in trafficking
cases or generally; but whether there is scope for more extensive use of hearsay in trafficking cases is
perhaps the most important practical question raised by the discussion that follows.
Part I: Victims and the Investigative Process
An effective investigation by the police, and/or another agency such as the Gangmasters and Labour
Abuse Authority,
5
is needed to bring an offender to justice. Central to the success of human trafficking
prosecutions is the involvement and cooperation of human trafficking victims as witnesses. Human
trafficking is a covert crime which presents complex evidential issues. Victims of modern slavery and
human trafficking, whether for sexual exploitation or labour, can be among the most vulnerable of
witnesses, often belonging to socially excluded groups and requiring significant support. However, they
are most often treated as the primary source of evidence, so that securing their cooperation plays an
important role in a successful prosecution. Studies of law enforcement responses to human trafficking
suggest that victim cooperation is central to the success of human trafficking prosecutions
6
and is one of
the most common challenges faced by law enforcement in the identification and investigation of human
2. National Audit Office, Reducing Modern Slavery (HC 630, 2017) para. 4.9.
3. Ibid., 4.10.
4. Our use of the concept of a right accords with D. Lyons ‘qualified beneficiary theory’: Rights, Welfare and Mill’s Moral Theory
(OUP: Oxford, 1994), 29–30.
5. See, for example, ‘Trafficking Duo get Six Years Each After Joint Investigation’ (20 May 2016). Available at: http://
www.gla.gov.uk/whats-new/press-release-archive/180516-trafficking-brothers-get-six-years-each-after-joint-investigation/
(accessed 4 Jan 2018).
6. F. Laczko and M. A. Gramegna, ‘Developing Better Indicators of Human Trafficking’ (2003) 10 Brown J World Affairs 179.
Ward and Fouladvand 139
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