‘Archaic’ wording in proposed human trafficking legislation criticised by expert

An expert in anti-human trafficking measures has criticised the Government’s proposed legislation, arguing that it lacks a range of protections.

Kevin Hyland was appointed as Britain’s first independent anti-slavery commissioner in November 2014 and received an OBE for his service in combatting human trafficking in 2015.

He also served 30 years as a police officer in the UK, and was formerly head of the London Metropolitan Police Service’s Human Trafficking Unit.

Mr Hyland told BreakingNews.ie that one big issue he sees with the Government’s Action Plan to combat Human Trafficking is the fact that people will have to make an application to be recognised as a human trafficking victim.

“The big issue I would have is the wording of the bill. It talks about a person who believes they have been a victim of human trafficking, that he/she may make an application to be recognised as a victim of human trafficking.

“It’s so archaic in its wording. These victims who are marginalised, find it challenging to enter into systems. Can you imagine if you or I went into a garda station to record that we’d been robbed, or our house had been broken into, and they said ‘you can make an application to be considered’. Then it gets referred to an operational committee, and we’ll get back to you and let you know whether we believe you or not.

“It really has created another level, another hoop, for victims to get through.”

Another element not included in the bill is the non-punishment principle, “which is required by the Council of Europe and the EU Directive”.

“This allows victims to come forward with confidence they will not be punished for offences that are linked to their trafficking,” he explained. “Not every occasion will have this applicable. It’s for things like document offences, and at least it gives clarity to the DPP and An Garda Síochána about the situation and position of victims.”

Forty-two victims of human trafficking were formally identified by An Garda Síochána in 2022. Most victims are trafficked into the State for sexual exploitation, but trafficking for labour exploitation also makes up a significant number of victims.

A report by the Human Trafficking and Exploitation Project on the Island of Ireland, published by Mary Immaculate College in Limerick and chaired by Mr Hyland in 2021, suggests that the true incidence of human trafficking in the State could be 38 per cent higher than the official figure.

Speaking at an Oireachtas briefing during the week, Mr Hyland also pointed out that the Government had failed to acknowledge that the findings for Northern Ireland were also applicable to the Republic.

“In 2019, I chaired the development of the report from Mary Immaculate in Limerick and that report is used by the Department of Justice to show that Ireland is not doing such a bad job. But that report was done on the island of Ireland… it showed that the figures in the Republic of Ireland were higher…since then in Northern Ireland the number of reported cases has gone up, while in the Republic it has gone down.”

“These criminals do not recognise the border,” he added.

Going back to the non-punishment principle, Mr Hyland pointed to the case of a Vietnamese woman who was charged with cultivating €900,000 worth of cannabis at Tinarana House in Killaloe, Co Clare.

“She was charged with drugs cultivation, even though she was clearly being controlled. She couldn’t speak English, it was beyond her ability to rent the premises, to be able to instigate that.

“When she pleaded guilty, almost everyone in the court thought it sounded like trafficking, and it was ‘oh, we’ll get her sentenced quickly’ so she could be deported to Vietnam.

“An intervention took place, and she was then supported, but those injustices are enormous and severe breaches of people’s human rights. Are the measures going to address that? There is no mention of the non-punishment principle [in the legislation].”

Mr Hyland also referred to a case in Mullingar where a number of Nigerian women who were forced into prostitution gave evidence at a bail hearing.

“In Ireland’s legislation for human trafficking, the judge is permitted to clear the court and have it in front of no public or press, so it is considered as high risk, not at the level of the Special Criminal Court, but it’s one step removed from that.

“Yet in the one conviction in Mullingar, the victims were required to turn up to give bail evidence, to be cross-examined, so on one hand we have legislation brought in saying the court could be cleared, victims can give testimony behind a screen or by video, but then we’re saying they have to give evidence at a bail hearing?

“Victims get scared. It hasn’t got to the heart of the issues. The Special Criminal Courts have been found to be constitutionally acceptable, we need to look at this in a slightly different way.

“The other thing I often say is, I investigated crimes where no victim came forward because we got the evidence through other means. Finances, surveillance, looking at manifests, activity that we could prove, and then predicted and disrupted them.

“It’s kind of passive in Ireland. I do know there is a change from An Garda Síochána to look at this more proactively and use their resources on this issue.

“Again, that will need investment, clarity, and a recognition that this is a very serious crime with a national and international dimension.

“If you’re starting it by saying a victim may make an application to be considered, I don’t think that really promotes what we’re actually saying, because words matter, and that doesn’t sound like something we should say.”

Forced labour and organised crime

Mr Hyland said human trafficking is extremely complex as forced labour can take many different forms. He also said the grooming of children for crime should be treated with the same severity as trafficking offences.

“Another new piece of legislation that’s due to come forward is around recruiting children for crime. The legislation suggests five years’ imprisonment. It does nothing to talk about how these children are victims of trafficking. The offence of trafficking holds life imprisonment in Ireland, but the International Labour Organisation (ILO) Convention of 1999 on child labour, which Ireland is a signatory to, says using or grooming a child for dealing drugs or other criminal activities is forced labour under international legislation.

“The maximum of five years’ imprisonment lowers this down the scale, there is no recognition of a child who has been forced into criminality as a victim. Will they just be referred to the garda youth offending programme, or will they get a mark against their name through the justice system, or be seen as a victim? They are seen as victims in other countries.

“It’s seen in so many different sectors: agriculture, fisheries, nail bars, food processing.

“In Ireland there was an example of Romanian people in recycling plants being exploited.”

He also said a reference to the State’s responsibility is absent from the proposed human trafficking legislation.

“An example I would give of that is Aer Lingus is required under UK legislation to report what it’s been doing to prevent modern slavery in its business and supply chain. They’re not required to do that in Ireland.

“Paddy Power, in Australia under their modern slavery act, have to report what they are doing in the country to make sure there is no exploitation in their supply chain.

“Harvey Norman, as an Australian company, is required to report fully on its activities in Ireland in Australia, but there’s no similar legislation in Ireland.

“The EU is bringing in a directive on this, Germany has already brought in supply chain accountability laws, public procurement is the biggest procurer of services in the world.

“Where are the uniforms for state agencies being bought? Where are the computers being bought?”

He added: “One important thing is sustainable development goals (SDGs), which Ireland drafted, and led with Kenya back in 2015. This year at the big meeting in New York, led by the Taoiseach, it said Ireland would drive to deliver these SDGs.

“One, SDG 8.7, is all about ending modern slavery, human trafficking, and forced labour of children.

“The one area that’s defined as forced labour of children, under the international labour organisation’s protocol, is being removed from the potential of being a trafficked offence [in the legislation]. All these things need to be joined up and understood better.

“The new legislation and plan mentions setting up working groups, but there’s very little on timelines.

“Up until now, a victim of trafficking in Ireland who is not Irish or an EU citizen, there was no support. The only thing available was direct provision.

“There was an absence of Irish victims in the trafficking figures, there were Irish nationals trafficked in the UK last year. The biggest cohort of the 16,900 trafficked victims identified in the UK last year were British children.

“In the UK there have been many convictions of people for human trafficking where they have used children for forced labour or sexual exploitation. I myself prosecuted and got convictions in a number of those cases.”

Mr Hyland said there were some positives in the legislation, including expunging prostitution convictions for trafficking victims.

‘Litmus test’

However, he said the ultimate “litmus test” would be “3am in the morning in rural Ireland. If a victim comes forward, would gardaí, the health services, NGOs or whoever, have access to resources to support that individual at that time? If it’s not working at that level, that’s a problem.

“At the moment, the clarity and ambition that it will look like this is not there.”

He said Ireland could look to measures in the UK that worked, or others that didn’t.

Mr Hyland said the process of victims applying to be recognised led to delays of up to two years for vulnerable people.

If the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 goes through without any changes, Mr Hyland warned it will be a “missed opportunity”.

“I think with the legislation it’s not so much a matter of tweaking as revisiting it and I think that’s where it will end up eventually. It’s a missed opportunity of what could have been something that is a real game-changer.

“The majority of victims of trafficking in Ireland at the moment are non-Irish. I don’t think we could say that for any other crime.

“Legislation needs to encourage victims to come forward, those responsible for these crimes to feel the full weight of the law, to better understand human trafficking. There has been one conviction in Ireland, despite having legislation since 2008. There have been no force labour convictions.

“In 2022, there were no convictions for human trafficking in Ireland, and the numbers of victims being identified has gone down year-on-year. In the North, they have gone up significantly in that time. Criminals don’t recognise the border. Many of the cases of human trafficking in the fishing industry crossed the border on many occasions. There is such disparity, even on the island of Ireland, that it shows something is not right.

“I think the fact gardaí and trusted partners like NGOs will be involved in the process is positive, but I don’t think it is sound in the way it is written at the moment.”

In a statement on the new bill issued to BreakingNews.ie, a Department of Justice spokesperson said: “There is no question that combatting it is, and will continue to be, a priority for this Government. A number of significant measures to combat trafficking, to create a more victim-centred approach to identifying and supporting victims and to raise awareness and provide training, have been introduced.

“In addition to work underway on the new National Action Plan, among other ongoing initiatives are:

• The revision of the National Referral Mechanism, which was approved by Government last year.
• The development of training, through NGOs, targeting front line staff in industries such as hospitality, airline and shipping who may come into contact with trafficked persons.
• The improvements being made to the Criminal Justice System to support victims through the implementation of Supporting a Victim’s Journey.”

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