All over Europe talks, debates, shows and protests are taking place to mark Anti-Trafficking Day. OurKingdom publishes the piece below as part of this push for understanding and abolishment of our modern form of slavery.
Two things recently made me think about Britain. First I attended a citizenship ceremony: Land of Hope and Glory and a welcome-cum-exhortation to the new citizens to uphold the values and liberties of our democratic nation. Then I read “The Criminalisation of Migrant Women” by Liz Hales and Loraine Gelsthorpe of Cambridge University’s Institute of Criminology, a report on the experience of trafficked women convicted of crimes including entry into fake marriage, drug importation, cannabis production, street robbery and selling fake goods. As victims of crime, they experienced domestic servitude, rape and aggravated assault, threats and theft of documents, sex and/or labour exploitation and forced participation in crime. (You can read it here as a PDF.)
There was something deeply troubling about reading the report fresh with the memory of the citizenship ceremony. Not because I am cynical about the importance of democracy and the freedoms it represents – far from it. But because of the triumphant confidence, in words and music, of the ceremony. For democracy is process and aspiration rather than fact, and the report brought home just how much work we need to do. Its significance lies not in the women’s experience in the hands of their traffickers but in their parallel experience of the UK authorities. It is compelling reading for anyone with a concern for powerlessness in the face of the State.
Gelsthorpe and Hales cover a lot of ground: the backgrounds of poverty, abuse, desperation and ignorance of trafficking which led most of the women into their predicament; the crimes of which they are accused; their experience of the criminal justice and immigration systems, before and during imprisonment; their experiences after release; childcare issues. I’m going to focus on the criminal justice system because that resonates, unhappily, with what I’ve seen elsewhere.
What emerges? The picture of a cut-price system providing cut-price justice for people not seen as worthy of more. The message is clear: the powerlessness of these women in the hands of their traffickers was terrifyingly replicated within the criminal justice system. “I just felt I was in their [police] hands – like being in the hands of the people who brought me here”, says one woman. Again and again one reads that “I do not know if it is safe to talk”, “I was confused”, “I tried to tell…”, “they never ask why”, “I told them but… I do not think they believed me”, “I never understood”. When a woman said that “without paperwork I am nothing. I do not appear to exist”, she spoke a truth: without the right paperwork, she did not exist as a person meriting the basic rights to liberty, due process of law, family life and even life itself. “When they took me to the police station they were not interested in me as a human being.”
What are the specific charges against the system? Not that it is theoretically wanting. It is the implementation which falls short, in the crudest ways.
Where crimes are possibly committed under duress, the accused can be referred by various bodies, including the police, prison and social services and the UKBA, to authorities competent to assess and potentially divert them from the criminal justice system. This National Referral Mechanism (NRM) was set up in 2009 following the UK’s 2008 ratification of the Council of Europe Convention on Action against Trafficking in Human Beings. The Coronors and Justice Act 2010 (s71) penalises those holding others in “slavery, servitude and forced or compulsory labour” as defined by Article 4 of the 1950 Human Rights Convention. Our legal system fully recognises the reality of duress: when people are forced to break the law, they should not be criminally liable.
In practice, of the forty-three criminally-convicted women identified by the highly experienced Gelsthorpe and Hales as victims of trafficking, only one woman’s claims were fully investigated, with two other attempts by the police to gather further information. This amounts to a chilling abuse of power: abuse by inaction. Eleven were referred through the National Referral Mechanism; six were finally accepted as victims. The preferred option was to discount rather than explore their stories.
Why? One impression is of failure at all levels to make the effort of imagination necessary to understand their circumstances. And without understanding, there can be no justice. Again and again we hear of women confused by trauma, limited English and ignorance of the processes they faced; not knowing what they were being asked or whom they could trust. “If I had been able to talk then maybe I would not be here” [in prison]. Without time, space and non-threatening auditors willing to listen, they had little chance of explaining the all-important circumstances of their ‘crimes’.
A willingness to listen and understand. From the police interview record for a 17 year-old victim of sex trafficking: “What you’ve told me today does not make a great deal of sense and …you come across quite sensible and you are trying to tell me that for seven years you’ve been basically held, held captive for seven years” . This may be inconceivable to someone assuming that such a victim would flee as soon as possible to the police for protection (“If this is what happened to you, why did you not come to the police for help when you got away?”); it’s well conceivable for people able or willing to recognise what it means to live with threats of reprisal by traffickers and with the fear of police reactions to illegal status. “In a number of cases,” comment Hales and Gelsthorpe, “it is inconceivable that the physical and psychological indicators used to identify victims of trafficking, which were so apparent when interviewing women in the context of this research, were not evident at the point of arrest… One can only conclude that these women were processed in the normal manner because the police were focusing on the individual as an offender” and did not see it as “appropriate” to refer them through the National Referral Mechanism. Prosecution, not investigation, is the dominant agenda.
It is not only the police. Exceptions are documented in the report, but far too many solicitors provide a minimalist service, lacking time, care or concern for the truth to emerge. “The solicitor did not ask how I got to England. When I tried to tell him he said he was only interested in the criminal side of the case”, not in the circumstances essential to the question of duress. In part, this is pragmatic: a guilty plea attracts a shorter sentence than an unsuccessful not-guilty one. Where legal representatives did claim in court that their clients were victims of trafficking, it was usually to plead mitigation after a guilty plea.
But underlying the pragmatism is a lack of interest in proving the client’s innocence, an unwillingness to make the effort. The complaints of inaccuracies in their solicitors’ accounts are frequent – inevitably, given the brusquely-ignored barriers of culture, language and trauma. Guilt and innocence have no significance in this sausage-machine law. Women in the report have very little time with their solicitors, none of it relaxed; no care is taken to ensure adequate translation and interpretation services or to ensure or demonstrate the impartiality of lawyer or translator: co-defendants, potentially including victim and trafficker, are given the same solicitor and translator. Women victims of sex-trafficking are given male lawyers, who demand that they tell their stories from the depths of fear and humiliation. Trust is at the heart of the lawyer/client relationship; here it is brushed aside.
Crudely brushed aside. One legal representative refuses to tell the court that his client was forced into sex work lest it prejudice the court against her; through his refusal, he implicitly accepts that such victimhood is treated as culpable. The judiciary appears to have a similarly inadequate understanding of guilt and innocence: “one woman…, when asked in court whether she pleaded guilty or not guilty, stated: ‘I want to explain to you why I did this.’ The response from the Bench was a sharp retort, ‘We are asking you whether you plead guilty or not guilty.’” Without an exploration of why?, that is an unanswerable question.
The report cites Ministry of Justice figures showing that in line with an increasingly hard line on immigration, numbers of foreign national women in UK prisons has been rising, contrasting with a post-2008 gradual fall in the imprisonment of women overall. Foreigners who break our laws and take our jobs are not welcome in Britain. If the contemptuous lack of interest in due process of law revealed by this report were confined to the migrant population, one could define the problem as one of racism, narrow nationalism and economic self-protection: deeply ugly, but thus far contained.
What adds to my revulsion is that I recognise strands of this report from other contexts. The coalition government is discontinuing legal aid for welfare benefits, employment and most family, debt and housing law. As a Citizens Advice Bureau specialist, I know how intricate our welfare benefit system is. I also know that even relatively simple legal criteria and processes are hurdles at which people struggling with distress, anxiety, illness or fatigue too often fall. I have seen the mockery of due process which ensues where people have no legal help: failures to gather and evaluate evidence; claimants’ inability to tell their stories to a decision-maker whose default mode is too often disbelief; claimants’ lack of understanding of the legal case they need to make, their rights or the processes they face. People accused of fraud accept cautions as the swiftest way out of a nightmare, ignorant of or indifferent to the admission of criminal guilt involved. Unto those who have, more shall be given: those with the confidence, articulacy and know-how – or money to buy them – may win through; others go to the wall. In a period of ‘efficiency’ savings, it is in no one’s interest to stop, to ask questions, to explore the situation’s realities. This is summary justice.
We get the legal system we deserve. The Daily Express believes that “It is not the middle classes who are bankrupting Britain but the free-loading underclass”. That analysis-defying phrase, “free-loading underclass”, gives the green light to a mutilation of law. Those who are not fully human, having failed to enter the club as emotionally and morally undemanding, financially independent citizens, do not merit due process.
I return to that heart-stopping statement – heart-stopping if one takes a moment to imagine the experience behind it: “I am nothing. I do not appear to exist.” And another: “I have been abused by everyone I have lived with.” These experiences include the UK’s protective services of law and order.
There is folly in our acceptance of such a situation, for always “there but for the grace of God go I”: that is one of the motives for democratic accountability. And, for those who would like to see the UK as a Land of Hope, there is great shame.