The following article was published in New Law Journal earlier this summer.
January of this year saw the launch of the Trafficking Compensation Action Group (TCAG), a network of practitioners who work in various ways to secure compensation for victims of trafficking and modern slavery. The aim is to pool and share knowledge and best practice in the sector, and build collaborative relationships in order to achieve better results for victims. The focus is on securing compensation through multi-disciplinary rather than specialist approaches.
The emphasis of TCAG is squarely on compensation for victims, rather than bringing wrongdoers to justice more broadly. Those who work with victims of trafficking know that achieving justice—for example, through the criminal courts—only goes so far. Victims of trafficking are vulnerable to further exploitation: escaping their predicament often leaves them without money, housing, or community ties, and with serious physical and psychological injuries. It is all too common to see them fall back into the hands of people who exploit those vulnerabilities.
Compensation can help break that cycle by giving them the resources they need to move away from the community and any dangerous networks, house themselves, regularise their immigration status, access therapy or medical treatment, or obtain the qualifications required to secure legitimate employment.
At the heart of the TCAG initiative is a recognition that what is needed is a multidisciplinary approach, and a degree of creativity from practitioners who benefit from expertise across a wide range of traditional legal practice areas. This kind of agile approach can yield the best results in terms of identifying the right claim, and the best source of compensation.
Employment law can be an obvious place to start, but is reliant on there being an identifiable framework agreement between the parties. Situations where an employment tribunal (ET) claim might be appropriate are in the context of domestic worker arrangements, sham apprenticeships and exploitative arrangements labelled as ‘work experience’. In these circumstances there are likely to be background agreements, supported by consideration, and a set of expectations between the parties.
ET claims can result in significant awards for victims, in particular where they have been subjected to harassment or ill treatment as a result of a protected characteristic.
However, there is very often not a framework agreement or anything resembling a set of terms and expectations, and the trafficker is not always the person who engages the victim’s services. In those circumstances, it may be necessary to look to civil law more widely for a path to compensation.
Trafficking and modern slavery are not recognised in their own right as civil (rather than criminal) wrongs. The criminalisation of modern slavery and human trafficking helps to bring wrongdoers to justice and acts as a deterrent, but it does not provide victims with the financial means to restore their quality of life and free them from the cycle of abuse and exploitation.
Bringing a civil claim on behalf of a victim therefore requires some creative thinking, and an awareness of some of the more niche areas of tort law. An inquiry into the victim’s experience may reveal that they were subjected to any number of recognised civil wrongs, including battery and assault, false imprisonment, harassment, and deceit. Where a victim has suffered serious physical or psychiatric harm as a result of the acts of a trafficker or enslaver, but has not been directly assaulted or beaten, it is worth considering the rarely used tort of intentional infliction of injury.
A benefit of bringing a civil claim for a form of trespass to the person, from a compensation perspective, is that damages are at large, and can (and should) compensate injury to feelings, suffering, humiliation or distress. It is not, therefore, necessary to demonstrate any financial losses flowing from the conduct in order for compensation to be awarded.
Employment and civil claims are powerful tools, but are only worth pursuing where the respondent has funds to meet any order for damages. A common problem faced by lawyers working on behalf of victims is that traffickers’ profits—because they represent the proceeds of criminal conduct—are often disguised or hidden. Consideration should be given at an early stage of any claim to obtaining a freezing injunction. This may require tracing and identification of available assets. The assistance of financial investigators and forensic accountants may be required. A familiarity with financial crime and money laundering investigations will benefit practitioners.
In circumstances where the trafficker has no available or identifiable assets, it may be necessary to look instead at compensation from the state. Applications can be made to the Criminal Injuries Compensation Authority (CICA) regardless of whether the trafficker has been formally prosecuted. However, the CICA scheme only permits compensation for victims of ‘crimes of violence’, and, at least as currently interpreted, that definition is limited. Furthermore, the type of harm which can be compensated is restricted, and quantum of awards is based on a tariff scheme which yields significantly lower awards than damages in civil claims.
A significant obstacle for trafficking victims is obtaining legal aid. Although they are legally entitled to public funding in theory, the process of applying for it is administratively burdensome, opaque and frustrating. Most lawyers who have represented victims know that this is the first—and often the longest and hardest-problem to solve. In appropriate cases, lawyers may choose to work on a conditional fee agreement, although again the benefit of this depends on the identification of money and assets by means of which the respondent might be expected to meet an order for costs. Frequently, what will be required is tenacious and organised assistance with making applications for legal aid.
Trafficking victims’ cases are not easily pigeon-holed. By their nature, trafficking and modern slavery exist along the edges of legitimacy, often shrewdly exploiting lawful structures. An equally agile response is required, particularly in circumstances where there is no straightforward route to compensation for victims.
The TCAG recognises that, and sets out to pull together the knowledge and expertise of practitioners in the legal, voluntary, regulatory, and non-profit sectors—and beyond—in order to develop multi-disciplinary, creative approaches to identifying legal routes to compensation, funding them, and securing meaningful damages for victims.
p8,173 NLJ 8018, 24 March 2023
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