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Is human trafficking a 'crime of violence' under the Criminal Injuries Compensation Scheme?

2018-07-04 16:57:18

LSA recently helped a young woman who was trafficked to the UK to apply for compensation for her injuries.

After being taken to the UK against her will, our client was held in a locked room in Birmingham along with a number of other young women, and informed that she would be forced to engage in sex work. However, she managed to escape and eventually came into contact with the authorities.

After being referred to LSA, her immigration case was successfully resolved and she was granted the right to remain in the UK. An application to the Criminal Injuries Compensation Authority was also submitted. However, her compensation application was turned down on the grounds that “trafficking” is “not a crime of violence”.

An application was then made to the Tribunal on, broadly speaking, the following grounds:

  1. Trafficking and the associated constraint on freedom (whether by force, or fraud, or both) in itself is a crime of violence; and/or

  2. In this particular case and, indeed, in most (if not all) other trafficking cases, threats are made to prevent persons who are being trafficked from escaping; and/or

  3. In this particular case there was a threat that a young girl was being “trained” to be a prostitute which was, in effect, a threat of a crime of violence (rape) that would be perpetrated against her.

The Appeal Hearing

At the appeal hearing the Presenting Officer for the Criminal Injuries Compensation Authority, referring to an Annex B of the 2012 Scheme, reiterated the Authority’s position that being trafficked or being held imprisoned on its own is it not a crime of violence.

However, the Tribunal Members were incredulous about that argument. They were still more incredulous that the Authority seemed to think that the threat of being forced to become a prostitute was not a threatened crime of violence. The Psychiatric “Wing Member” commented that he thought being trafficked, being locked up and being held for the purposes of compulsory prostitution was a form of torture on its own.

The Law

Counsel for our client also made a number of interesting points relevant not only to trafficking cases but of importance to criminal injuries compensation matters generally.

It was noted that Annex B of the Criminal Injuries Compensation Scheme 2012 is brought into the Scheme by the following phrase in paragraph 4:

“The meaning of “crime of violence” is explained in Annex B”.

Counsel commented that an explanation of something is not necessarily conclusive of its meaning.  Annex B could be seen as exemplifying the meaning of the concept of “crime of violence”, but not exclusively in any respect.

Accordingly, the fact that trafficking itself or imprisonment itself does not appear in Annex B does not preclude a view being reached that in the particular circumstances of a trafficking case or an imprisonment a crime of violence has occurred. If Annex B was supposed to be an exclusive or encompassing definition of “crime of violence” then paragraph 4 could very easily have indicated so. Counsel commented that in his view the drafting of paragraph 4 was plainly intended to preserve a degree of flexibility to deal with changing circumstances (and common sense). 

This point is an important one as there may be other circumstances that on a common sense basis amount to a crime of violence which do not fall within the examples given by Annex B.

Counsel then went on to remind the Tribunal that the United Kingdom has signed up to the Trafficking Directive, which provides that victims of trafficking should have access to Domestic Criminal Injuries Compensation Schemes. If the Tribunal had not accepted his argument about the breadth of paragraph 4 they would have to send the matter to the European Court of Justice to resolve whether the 2012 Scheme complied with the Trafficking Directive.

He also made reference to related international documents concerning trafficking which placed it in the context of violence against women and children, i.e. it is inherently a form of violent crime.

The Decision

In the end, the Tribunal found that the applicant was a victim of a crime of violence in accordance with Para 4 of the Scheme.

Further issues

Notably, the Scheme does not quantify compensation for deprivation of liberty. It may be that this is an issue that will need to be addressed in future.