Scotland is a unique case on the issue of trafficking in Britain. Its woefully low record of attaining prosecutions has been attributed by some to the legal hurdles in Scots law pertaining to collaboration. Its legislation relating to trafficking is complex – spread across a number of different statutes including: Proceeds of Crime Act 2002; Criminal Justice (Scotland) Act 2003; Asylum and Immigration Act 2004; Gangmasters (Licensing) Act 2004; Immigration, Asylum and Nationality Act 2006; Sexual Offences (Scotland) Act 2009 and Criminal Justice and Licensing Act (Scotland) 2010.
Following an investigation by the Equality and Human Rights Commission led by Baroness Kennedy QC in 2010, responses to human trafficking in Scotland have been criticised as lacking a ‘coherent approach’. In the report, Baroness Kennedy stated:
“Police who had investigated trafficking cases spoke about the near impossibility of securing courtroom testimony from witnesses, especially when their immigration status was uncertain, and they could face deportation back to their countries of origin at the end of the process.
Scottish prosecutors also face an additional hurdle as there is a requirement in Scots law for corroboration in criminal cases; this raises the evidential bar for a successful prosecution even higher than in other parts of the UK or abroad.”
In response to this, moves have been made to reform legislation in order to improve the number of prosecutions, including dissolving the collaboration rule, creating a statutory human trafficking criminal aggravation, and launching a reassessment of the National Referral Mechanism, which many say in its current state is merely an immigration tool rather than a sympathetic assessment of a potential trafficking victim.
Yet with over 150 prosecutions secured in England and Wales for trafficking, Scotland has only secured two successful prosecutions for trafficking to date. The first, HMA v Craig and Beukan in 2011 was the first case of individuals to be charged under section 22 of the Criminal Justice (Scotland) Act 2003. The second and most recent case was in January this year, involving the issue of trafficking for forced marriage.
However, it is important to note that labour trafficking has yet to see any prosecutions in the Scottish courts, though there is growing evidence that this issue is beginning to receive greater attention. In a recent roundtable meeting at the Scottish Parliament of a cross-party group on human trafficking, Assistant Chief Constable Stephen Whitelock said: “The growing problem of forced labour in Scotland now exceeds cases of sexual exploitation in the country.” ACC Whitelock also said that police are now being trained to assess trafficking victims better where there may be a greater question of their status, such as in the growing incidence of cannabis factories found across the country.
There seems to be a growing acknowledgement in Scotland that a robust response will have to occur if the country is going to make a dent into this intransigent problem. Many feel that a proposed statutory criminal aggravation should not take the place of a much-needed standalone piece of legislation on human trafficking in Scotland. Yet what is certain is that while greater debate is being had on the subject, what actions emerge will be highly anticipated. As the Scottish referendum approaches in 2014, more attention will be drawn to Scotland and the efforts it makes to confidently tackle issues such as trafficking and forced labour, and to ensure victims are not inadvertently prosecuted as criminals.
Mei-Ling McNamara is a journalist and documentary filmmaker, working in both print and broadcast media. She is currently pursuing her PhD in Trans-Disciplinary Documentary Film at the University of Edinburgh where her work is focussed on forced labour on the black market in Britain. Her documentary Children of the Cannabis Trade, broadcast on Al-Jazeera English, won the 2011 Human Trafficking Foundation Media Award for Best TV Documentary, presented at the House of Lords. She is currently based in Edinburgh.