The impact of COVID-19 and Online Courts on Human Trafficking Victims who Commit Crime in Australia

On the 6th of May 2020, the UN Information service issued a warning that measures to curb the spread of the COVID-19 are exposing victims of human trafficking to further exploitation and limiting their access to essential services. The warning indicated that “new analysis from the United Nations Office on Drugs and Crime (UNODC) shows how lockdowns, travel restrictions, work limitations and cuts in resources are having a negative and often dangerous impact on the lives of these already vulnerable people - before, during and even after their ordeal”. Director Ghada Waly said.

"With COVID-19 restricting movement, diverting law enforcement resources, and reducing social and public services, human trafficking victims have even less chance of escape and finding help. As we work together to overcome the global pandemic, countries need to keep shelters and hotlines open, safeguard access to justice and prevent more vulnerable people from falling into the hands of organized crime."

For defence lawyers, it is not just that the legal frameworks are complex but that we may be the first people to whom the victim who is accused of a crime has divulged their status as a trafficked person. Online courts risk an additional lack of access to justice for vulnerable people.

Legal frameworks

• It is relatively well known now that s45 of the UK Modern Slavery Act 2015 provides a defence for trafficked persons who are compelled to commit crime where that compulsion is attributable to slavery or to relevant exploitation. No such law exists in Australia. The Modern Slavery Act (Cth) 2018 is limited to corporate reporting of slavery in supply chains. Although it was recommended that Australia improve on the UK law in the Parliamentary Hidden in Plain Sight report

• If a victim is identified in Australia there are referral mechanisms through the AFP have demonstrated some commitment to protection of victims of human trafficking here and there is a consultation on a new national action plan. In the UK representations can be made to the Crown prosecution for a non -prosecution outcome. CPS Guidance on human trafficking, smuggling and slavery is here.Such comprehensive guidance is not currently publicly available in Australia although it is likely that similar considerations would be applied and where victims are identified in criminal networks representations for discontinuance should be made.

• In the UK it is also relatively well known that those wrongly convicted before the Modern Slavery Act 2015 came into force can seek to appeal. The Court of Appeal Criminal Division in England and Wales (CACD) in R v VSJ [2017] 1 WLR 3153declined to extend duress so the CACD largely deploys policy reasoning (under the guise of abuse of process), quashing convictions where had trafficking status been known at the time of the original prosecution the individual would not have been prosecuted. No such decision exists in Australia.

The problem with the Australian approach is that there are trafficked persons who will not be protected because Parliament has not fulfilled the obligation to protect victims of human trafficking in organised crime in the U.N. Trafficking in Persons Protocol .

Online courts

In a landmark judgment as long ago as 2010, the European Court of Human Rights unanimously ruled that human trafficking fell within the scope of art 4 (prohibiting slavery, servitude and forced labour) of the European Convention. The Court clarified the positive obligations upon States to investigate allegations of trafficking, identify victims and implement measures to prevent and protect people from human trafficking. Clealry Australia is failing trafficked persons who are compelled to commit crime in this regard. Add to this the drive for online courts and the systemic issues in Australia may be exacerbated by an increased difficulty in identifying victims: our research in 2018 found that it becomes increasingly difficult to identify victims of human trafficking when online courts are used. n online courts. Trafficked persons engage with the justice system in a variety of ways. Some are witnesses to trafficking crimes in a criminal prosecution. Others may themselves be on trial for crimes they were compelled to commit as a result of their trafficking situation. Additionally, they can be party to a civil case, e.g., arising out of an employment situation. In each of these cases there is possibility for the victim to be identified, if they are not already, as somebody who has a right to assistance and support. There is an opportunity for the state (through justice systems) to enable sensitive identification and thus fulfil human rights obligations. When cases go online there are serious questions with regard to privacy and data protection and how the implementation of online court processes may act as a barrier to identifying victims of human trafficking. Add to this that confessions in a referral mechanism are not protected from admissibility in criminal proceedings and the chances of identifying trafficked persons already under pressure from their traffickers become very remote indeed. Additional research has shown that it is only through safe structures to confess that a trafficked person accused of committing crime will be able to achieve non-prosecution for that crime.

Part of the UN warning referred to above came from Ilias Chatzis, the Chief of UNODC's Human Trafficking Section who said that " traffickers may become more active and prey on people who are even more vulnerable than before because they have lost their source of income due to measures to control the virus." There is a risk in times of a pandemic that law enforcement resources are diverted due to emergency policing and of course we know that vulnerable people are more at risk of contracting the virus with less access to healthcare. Add to this the potential for a lack of access to justice through the drive for online courts and we can start to see how the criminal just8ice system can fail the victims in the dock who we are under an obligation to protect. Thus, trafficked persons are victimised by their traffickers and doubly victimised by the state.

For more information: Impact of the COVID-19 Pandemic on Trafficking in Persons