This guest blog is by Open University law student and Open University Law Society Officer for Scotland, Lidia Dancu.
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Modern slavery and human trafficking are burning issues both at home and abroad and it appears surprising that, in 2017, slavery can still pose a challenge. Criminalising the enslaving and trafficking of people does not appear to be a sufficient deterrent.
The case of Reid v Scot of Harden (1687) (Mor. 9505), concerning a 17th century nameless girl brought in front of the Court of Sessions in Edinburgh inspired a group of advocates (Scottish barristers) to set up a body designed to raise awareness about the plight of victims caught up in modern day slavery and trafficking. The “tumbling lassie”, as she was known, had been “bought” from her mother and used as a performing acrobat by a travelling salesman, until, physically worn out, she fled her manager, one Mr. Reid and took refuge with Scot of Harden and his wife. Mr. Reid sued the Scots and demanded the return of his “property”, causing the courts, notwithstanding his production of such compelling evidence as a contract, to proclaim: “But we have no slaves in Scotland, and mothers cannot sell their bairns.”
On Saturday 28 January, the Faculty of Advocates in Edinburgh held their Tumbling Lassie Seminar: Trafficking in the UK: demands and dilemmas for justice, marking the 330th anniversary of the decision of the Court of Sessions in Reid. It is astounding to consider that, 330 years later, slaves still exist in the UK. Even in Scotland, most parts of which are often considered too remote for such illicit operations, people can still be bought, sold and trafficked under false pretenses, sexually or commercially exploited without the means of obtaining help.
The seminar was opened by Gordon Jackson QC, Dean of the Faculty of Advocates, and featured leading speakers on human trafficking, including Alison Di Rollo, QC, the Solicitor General for Scotland, the award winning human rights barrister Parosha Chandran, and Pam Bowen, CBE, a senior policy advisor at the Crown Prosecution Service, as well as presentations from Andy Bevan of International Justice Mission (IJM) and Bronagh Andrews, of TARA, the two charities supported by Tumbling Lassie.
The speakers referred to the estimated 4 billion people worldwide who live outside the protection of the law, and the over 45 million held in slavery, and emphasised the importance of advocacy in rescuing victims and bringing criminals to justice. If in certain regions of the world corruption, lack of training and lack of system reform coupled with overstretched and underfunded social services are the main system failure, the UK faces its own challenges.
The introduction of the non-prosecution of victims of human trafficking principle in UK legislation, as a defence in throughout the UKunder Art.8 of the 2011 Directive of the European Parliament, has been a much needed and welcome step in the right direction: that of affording some humanity to those who had been stripped of it.
The law, in response to the ever shifting slave trade, is evolving still. On 31 May 2016, the Lord Advocate made and published instructions for prosecutors in Scotland when considering the prosecution of victims of human trafficking and exploitation, covering any person over 18 accused of an offencecarried in the course of their having been trafficked or exploited, or as a consequence of the trafficking, and provided that any reliable, credible information from any source exists. The overall aim of the policy has been that of “making the invisible, visible”, by ensuring that all prosecutors in all crime areas are aware of its existence and by removing any onus on the victim to advance the proposition that s/he is a victim of human trafficking.
The speakers went on to consider the poor take-up of the National Referral Mechanism (NRM). This is the framework for identifying and recording victims and ensuring that they receive appropriate support, and to discuss the potential reasons for this. Consequential cases which changed the legal backdrop for human trafficking victims were considered and legislation, both domestic, European and international was duly examined.
The discussion was taken up by a panel, which concluded that when inconsistencies in the legal justice system fail to deliver objectivity and equity and when, as a last resort, legal actors must employ extensive court room strategies in order to minimise the resultant gap, much work still remains to be done. Training on trafficking, reporting and inter-agency collaboration, but above all, perhaps the good old Scottish approach suggested by the Solicitor General of Scotland, of dealing with matters with ‘a good deal of common sense and humanity’, would all lead to what has now become a call to ‘march with a firmer step’.
For that, however, we must first accept that, uncomfortable as it may be, in this country trafficking does exist. The way a society deals with its victims and its most vulnerable is the true measure of its worth.
The Tumbling Lassie Committee: Alan McLean QC (Chair), Patricia Comiskey (Treasurer), Maryam Labaki, Iain Mitchell QC, Eric Robertson, Isla Davie and Janys Scott QC.
- website copyright The Tumbling Lassie Committee 2015