Part Two - Supporting victims
Victims who have also carried out an act which constitutes an offence
22. Section 8 of the Act requires the head of the prosecution system (the Lord Advocate) to publish instructions which have to be followed by all prosecutors when deciding whether to prosecute either:
a) an adult for something they have been forced to do, due to them being a victim of either human trafficking or slavery, servitude or forced or compulsory labour; or,
b) a child, aged 12 -17 (a child under 12 cannot be prosecuted) who has done something as a consequence of being a victim of either human trafficking or slavery, servitude or forced or compulsory labour.
23. These instructions have been published and set out that there is a strong presumption against prosecution in such cases.
Victims of human trafficking: general support and assistance
Requirement to provide support and assistance
24. Section 9 of the Act requires the Scottish Ministers to secure support and assistance to adult victims of human trafficking in certain circumstances.
25. Where there are "reasonable grounds" to believe an adult is a victim of human trafficking then Scottish Ministers have to provide support and assistance from the date when the reasonable grounds are established until either; there is a "conclusive determination" that the person is such a victim or the expiry of a set time period, whichever comes first.
26. The set time period can be set out by Scottish Ministers in a further piece of legislation (regulations) which must be approved by Parliament.
27. The terms "reasonable grounds" and "conclusive determination" are defined in the Act by reference to Council of Europe Convention on Action Against Trafficking in Human Beings (the "Convention"). Reasonable grounds are therefore established if a competent authority has decided that there are such grounds for the purposes of article 10 of that convention. A conclusive determination is a determination by a competent authority under article 10 of the convention that an adult is or is not a victim of human trafficking.
Ability to support and assist
28. In addition to the requirement to provide support and assistance, section 9 also allows Scottish Ministers to secure support and assistance to adults in certain other circumstances. Accordingly, Ministers are able to secure support prior to reasonable grounds being established to believe an adult is a victim. Where a set
time period has been set out in regulations, the Scottish Ministers are also able to secure support after the expiry of that set time period and up to when there is a conclusive determination. Ministers may also secure support for the adult after there has been a conclusive determination.
Definition of support and assistance
29. The support and assistance secured by the Scottish Ministers is anything necessary given the adult's needs. Section 9(4) of the Act gives an illustrative (but not exhaustive) list of the types of support and assistance which may be given.
Conditions on support and assistance
30. No support and assistance can be provided unless the adult consents. Ministers are not allowed to make access to support and assistance conditional on the adult helping in any criminal investigation.
Method of providing support and assistance
31. Currently adults receive support and assistance through something known as the National Referral Mechanism. The Act is however silent on the method of providing support and assistance and in how article 10 of the Convention is to be followed. This allows Scottish Ministers flexibility in how they choose to meet their obligations and in how they choose to otherwise support under this section.
Victims of slavery, servitude and forced or compulsory labour: general support and assistance
32. Section 10 of the Act allows Scottish Ministers to make a further piece of legislation (regulations) which must be approved by Parliament. These regulations can make provision about providing support and assistance to a person who is or appears to be a victim of the offence of slavery, servitude and forced or compulsory labour.
33. These regulations can include rules on: how a victim is identified as being able to receive support, how long support and assistance must or may be provided, the type of support and assistance, and the way in which support and assistance can be provided.
Child victims of human trafficking: specific support
34. Any vulnerable child (including a victim or presumed victim of human trafficking or slavery, servitude and forced or compulsory labour) will be supported by the existing child protection system in Scotland. The Act goes further however and section 11 requires the Scottish Ministers to make arrangements to enable the appointment of an Independent Child Trafficking Guardian ( ICTG) to support and represent a child in certain circumstances, acting at all times in the best interests of the child.
35. Those arrangements must provide for an ICTG to be appointed where a "relevant authority" decides that:
a) there are reasonable grounds to believe that a child is, may be, or is vulnerable to becoming a victim of human trafficking; and,
b) no person in the UK has "parental rights and responsibilities" towards that child.
36. The section goes on to put duties on any person carrying out statutory functions in relation to that child to have regard to the functions of the ICTG and allow the ICTG necessary access to information about the child that they need in order to carry out their functions.
37. The section sets out in greater detail what "parental rights and responsibilities" means and who a "reasonable authority" is, as well as empowering the Scottish Ministers to make a further law (regulations) which will be scrutinised by Parliament, setting out further detail about the ICTG appointment process and functions.
Child victims of human trafficking: presumption of age in order to access support
38. Section 12 of the Act applies where a Health Board or Local authority has reasonable grounds to believe that a person is a victim of human trafficking and, while not certain of their age, think the persons may be under 18. In these circumstances, the Board or Authority has to treat that person as a child in relation to certain statutory powers and obligations. They are required to do so unless the person is proven or assessed to be 18 or over. The statutory powers and obligations are listed in section 12(3). The Scottish Ministers have the power to make a further law (regulations) which is scrutinised by Parliament, and can use this to change the list of statutory powers.