Victims of modern slavery – guidance for solicitors

Modern slavery has no formal legal definition. It’s an umbrella term used to describe a range of illegal activities, including:

forced labour (being required to work under a threat or penalty in circumstances the victim cannot control or change)
bonded labour (charging large fees to access jobs, using debt contracts to cover such fees and using the debt as a coercive lever)
child labour (being required to work under the legal age in exploitative or hazardous conditions)
forced commercial sex acts
forced marriage

The latest research suggests that over 70m people worldwide are in some form of modern slavery at any given time. A 2014 study from the Home Office suggested that there were between 10,000 to 15,000 victims of modern slavery in the UK, although the former anti-slavery commissioner Kevin Hyland has described the figure as “far too modest”.

The practice of human trafficking is a related and usually predicate offence of moving a person for the purposes of exploitation. For example, gangs are known to traffic women and girls from developing countries into the UK for work in brothels.

In most cases, the victims are unaware that they are being trafficked for sexual exploitation. However, even where they are aware of their ultimate destination, the perpetrator still commits the trafficking offence.

You may encounter victims of modern slavery as part of your work in criminal, immigration, mental health, children and protection or safeguarding cases.

Some victims may have entered the criminal justice or immigration system having been compelled to commit an offence by their traffickers.

There are seven mandatory principles which apply to all those regulated by the SRA and to all aspects of practice. These principles can be found in the SRA Standards and Regulations.

These issues will engage principles:

uphold the rule of law and the proper administration of justice
behave in a way that maintains the trust the public places in you and in the provision of legal services

Where your client is the victim, principle number 7 could be relevant:

act in the best interests of each client

When thinking about how to achieve principles 1, 2 and 7, you must consider it in conjunction with the principles applying across the handbook, including the SRA Code of Conduct for Solicitors, RELs and RFLs.

You should always bear in mind what the seven principles are and use them as your starting point when implementing the outcomes.

This non-exhaustive list of factors may help to identify possible victims:

suspected victim is from a place known to be a source of human trafficking*
possession of false identity or travel documents or having no identity documents
showing signs of fear or anxiety
suffering from STDs, pregnant or underaged
few, if any, personal possessions
exhibiting distrust of the authorities
evidence of violence or threats of violence
fear of revealing immigration status
lack of knowledge of home or work address
living in substandard conditions or a House of Multiple Occupation with many other people
signs that the individual's movements are being controlled or that they are taking instructions from a third party
inconsistent story or history
inconsistent about name and age

*Based on the nationality of victims referred to in the National Referral Mechanism (NRM) in 2016, those countries are:

Albania
Vietnam
Nigeria
Afghanistan
Eritrea
Iran
Slovakia
Iraq
Romania

The following people may be particularly vulnerable to the risks of modern slavery:

unaccompanied, internally displaced children
children accompanied by an adult who is not their relative or legal guardian
young girls and women
former victims of modern slavery, trafficking or other forms of serious abuse
mothers and babies/children
those who are in the care system or care leavers

Further indicators can be found in the United Nations Office of Drugs and Crime Indicator List.

If the victim you encounter has been trafficked, they may be reluctant to reveal their trafficking history until they trust you. This may take several meetings and will require a sensitive approach. When taking instructions, you will need to ask the right questions in a sensitive way to draw out relevant information.

Care must be taken not to make an already bad situation worse for the victim. The victim will often be very wary of any sort of intervention as they will frequently have an irregular migration status and will fear detention, removal or deportation.

This is especially the case with victims who are in a situation of debt-bondage. The debt is repayable in any event and gangs are known to use violence on family members in their country of origin if a victim stops repaying the debt bond. Any intervention must be handled with the utmost sensitivity and care.

Modern slavery victims are sometimes arrested on the following charges:

cannabis cultivation
drug importation
immigration offences
document offences
prostitution
dishonesty offences, including theft, pick-pocketing and begging

In determining whether a child is a potential victim of modern slavery, solicitors require specific experience, knowledge and understanding of child development. This is because characteristics and issues may be different to those of adult victims.

Children must be dealt with as a priority because of their vulnerability. You must deal with the child carefully to prevent them from becoming alarmed or concerned. In cases of potential child victims, you must remember that it is not possible for a child to give informed consent, so the means of exploitation (whether they were forced, coerced or deceived, etc) is irrelevant. You must also keep in mind the child’s:

added vulnerability
developmental stage
possible grooming by the perpetrator

No child’s case should be considered without contacting individuals from local authorities specialising in children. Like victims of other forms of child abuse, a child who is a victim of modern slavery will describe the behaviour that has to be assessed against indicators of child abuse and modern slavery. Children may not be familiar with the words “slavery” or “trafficking”, nor be able to label their experiences as abuse.

If the potential victim is under 18 years of age, you should immediately refer them to the relevant local authority’s children’s services. If you are not sure of the child’s age, the default position is to assume that s/he is under 18.

Traffickers or modern slavery facilitators can select victims from vulnerable groups. For example, people with:

substance misuse issues
debts (in their country of origin or as a result of their illegal migration)
mental health problems
learning disabilities

as well as anyone whose first language is not English.

A common factor of trafficking is that the trafficker will present a scenario in which the potential victim can improve the quality of their life and that of their family. Vulnerable people are often targeted because they can be easier to coerce into a situation where they can be manipulated. Some may respond to job adverts (for jobs which may not exist).

Victims may not recognise themselves as a victim and may not want to talk to the authorities or be formally referred for support. They may often distrust authorities and their legal representatives.

However, this should not prevent information about potential modern slavery being passed to the police, on an informed consent basis, nor should it prevent the completion of a duty to notify form for relevant organisations, which could help the police identify a crime.

See ‘Client confidentiality’ below for more detail on the issues to consider.

You do not need to be certain you’re dealing with a victim of modern slavery; simply suspecting so is enough to follow the steps below. If you suspect that someone you have encountered may be a victim of trafficking, you should make proper enquiries concerning this issue.

If the victim is your client, you should share the results of these enquiries with the Crown Prosecution Service (CPS) and the courts if necessary, although the rules of client confidentiality and legal professional privilege still apply and potential difficulties may arise if these are not accepted.

You should consider taking instructions and corresponding with the CPS, where appropriate, if your client:

is subject to criminal proceedings on account of their trafficked status, you should consider writing to the CPS with a request to stay the prosecution. Refer to our practice note on criminal prosecutions of victims of trafficking

has a historic conviction on account of their trafficked status, you should consider writing to the CPS to make an out of time appeal

wishes the CPS to consider bringing proceedings against their traffickers, you should consider writing to the CPS to inform them of your client’s wishes

wishes to give evidence within live criminal proceedings against their traffickers, you should write to the CPS confirming that your client wishes to cooperate with the CPS

When a potential victim of modern slavery referred to the National Referral Mechanism (NRM) is being prosecuted by the CPS, staff at the Single Competent Authority (SCA) must ensure, where possible, that the NRM decision is made before the court hearing.

The SCA must also ensure the police are notified and should ask the police to notify the CPS.

Although there are no specific exceptions to the duty of confidentiality (see SRA Code of Conduct for Solicitors, RELs and RFLs paragraphs 6.3 to 6.5), a conflict may arise between the duty of confidentiality and your ability to act with integrity (principle 2 of the SRA Standards and Regulations). Whether your duties conflict will depend on how material the information is.

You should also consider whether the threat to a child’s or vulnerable adult’s life or health, both mental and physical, is serious enough to justify a breach of the duty of confidentiality. Victims can be traumatised and there are many barriers that may make it difficult for them to come forward or co-operate with the authorities, particularly if they feel they wouldn’t be believed.

You must be familiar with the SRA’s guidance on disclosure of client confidential information which sets out the limited circumstances where it may be necessary to breach client confidentiality.

Children do not need to consent to being referred to the NRM. Adults do need to consent to being referred.

Specified public authorities have a duty to notify the Secretary of State under s52 of the Modern Slavery Act of any person encountered in England and Wales who they believe may be a victim of modern slavery. This duty applies to both children and adults.

Safeguarding the victim is the first priority for all public authorities. Where child victims are involved, the local authority will additionally implement relevant child protection procedures. The police or other authorities, such as the Gangmasters & Labour Abuse Authority (GLAA), will investigate and may be able to bring a prosecution against those responsible for exploiting the victim.

Victims of trafficking who go missing before, during or after litigation present problems for practitioners, who are left without instructions and without being able to progress their clients’ cases.

As a matter of good practice, practitioners should make sure that their retainer with their trafficked clients is effective. They should seek their client’s instructions on what to do if they go missing or lose touch with them.

See the Court of Appeal case of TDT v SSHD [2018] EWCA Civ1395 where a judicial review case proceeded in absence of the client.

The National Referral Mechanism (NRM) is the UK mechanism established to identify victims of modern slavery and ensure they receive the necessary protection and support. The process supports identification of victims who may come to the attention of designated 'first responders'. First responders can make an NRM referral to a competent authority who will assess and formally determine if the individual is considered to be a victim.

If you think that you have encountered a victim of modern slavery, you should arrange for the individual to be referred under the NRM to a competent authority. As solicitors are not designated as first responders, you will have to refer the victim to someone who is, for example the police, social services or an appropriate non-governmental organisation.

Since 29 April 2019, previous competent authorities were replaced by the Single Competent Authority (SCA) which considers all referrals to the NRM from first responders.

Designated first responders include government agencies such as the police and social services, and NGOs such as Unseen, Poppy Project, Migrant Help, Salvation Army, Medaille Trust, Kalayaan and Barnardo's.

The SCA makes decisions on all NRM cases irrespective of the immigration status, nationality or status of individuals. The SCA has five working days from the receipt of the referral to make a decision on whether there are reasonable grounds to believe that the individual is a “potential victim of trafficking” (PVoT.).

Reasonable grounds decisions for cases in immigration detention will be considered as soon as possible. This should be conducted by trained experts within the competent authority and there are two stages to this process:

Stage one: reasonable grounds

The NRM team has a target date of five working days from receipt of referral in which to decide whether there are reasonable grounds to believe the individual is a potential victim of human trafficking. This may involve seeking additional information from the first responder or from specialist NGOs, social services or the individual's legal representative.

The threshold at this stage is: 'from the information available so far I suspect but cannot prove' that the individual is a potential victim of trafficking.

The UKVI Asylum Process Guidance Policy on victims of trafficking states:

“the 'reasonable grounds' test has a low threshold and is lower than the threshold required for prima facie evidence (which is legally sufficient evidence, that, if contested, would establish a fact or raise a presumption of a fact). The test that should be applied is whether the statement 'I suspect but cannot prove' would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision maker, there were reasonable grounds to suspect the individual concerned had been trafficked.”

Stage two: conclusive decision

During the 45-day recovery and reflection period, the competent authority gathers further information relating to the referral from the first responder and other agencies.

This information is used to make a conclusive decision as to whether the referred person is a victim of human trafficking. The target for a conclusive decision is within this 45-day period, although in practice this time-frame is not adhered to.

The case manager's threshold for a conclusive decision is that, on the balance of probability, 'it is more likely than not' that the individual is a victim of human trafficking.

It is important to pass on any supporting documentation to the competent authority that may help it reach its determinations, such as medical and expert reports.

Child victims of trafficking require special protective measures and as a legal professional you play an important role in ensuring that the rights of child victims are safeguarded. Furthermore, in acting for child victims, you should have regard to the rules of client confidentiality and legal professional privilege.

You should bear in mind that children are particularly at risk of harm from those responsible for their trafficking. In some cases, there may be a dispute over the age of the victim. Young people often have no identification or travel documents or have been told to lie about their age to evade detection or detention by the authorities.

Article 10(3) of the Council of Europe Anti-Trafficking Convention provides:

“When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age."

If the age of the defendant remains in doubt at the end of a 'due enquiry', they must be treated as a child. See paragraph 25 of L, HVN, THN and T v R [2013] EWCA Crim 991.

Accordingly, in any case where it is unclear whether someone may be under 18 years, they should be treated as a child. If an age assessment shows they are adults, the children should have free legal advice to challenge that age assessment promptly.

A number of international instruments require the UK government and its agencies, including the CPS, to combat human trafficking. The Modern Slavery Act 2015 creates defences for victims of human trafficking.