Human rights organisations have raised concerns that young trafficking survivors in Scotland – including Vietnamese children found in cannabis factories – are increasingly being criminalised instead of being given protection and support. They say this breaches international human rights law.
Law firm Just Right Scotland told The Ferret it has seen an escalation in referrals it has received of young Vietnamese people charged and sometimes remanded in Scottish jails after raids on makeshift cannabis factories by police. It says the majority were children at the time of arrest.
Just Right Scotland and the Scottish Refugee Council claim that many children and young people arrested or remanded displayed clear “trafficking indicators” but were charged with drugs offences despite international protocols, which mean they should be protected
In some cases police referred young people for trafficking support while simultaneously submitting a report to the procurator fiscal. Police claim they cannot be sure if young people are trafficking victims at the time of arrest.
Scotland’s Commissioner for Children and Young People has now raised welfare concerns with both the Scottish Parliament and the United Nations.
Their fears are backed by figures – released by COPFS under freedom of information (FoI) legislation and passed to The Ferret – which highlight the extent of the criminalisation of potential trafficking victims.
From April 2016 to December 2020 155 potential trafficking survivors faced charges in Scotland, usually relating to drug offences. 21 of them were children. Though nationalities were not given in these statistics, research by trafficking support organisations shows the majority of trafficking survivors in Scotland are from Vietnam.
Numbers, the FoIs reveal, have recently spiked. In 2016/17, 20 people were reported to the Crown Office and Procurator Fiscal Service’s (COPFS) national lead prosecutor for human trafficking who had charges brought against them, including 14 for drug offences. By 2018/19 this had increased to 27, with 24 people accused of drug offences.
In 2020, 27 suspected trafficking survivors were charged from April to December alone, all related to drug offences. Six of them were children. But from January to March 21, 42 suspected trafficking victims were charged, all but one for drug offences. Again, six were children.
While some are bailed, the FoIs also revealed that only nine of the 155 people arrested had charges dropped by the COPFS national lead prosecutor, which is supposed to offer a key safeguard for trafficking survivors, especially children.
A further FoI request to the Scottish Prison Service (SPS) revealed that from January 2021 to 30 June, 14 Vietnamese nationals were held in a Scottish young offenders’ institute. The SPS said all were between 18-21 years old.
However, lawyers from Just Right Scotland claimed some were younger at the time of their arrest. It is understood that others are undergoing official age assessments because they claim to be younger.
Vietnamese young people detained
A separate FoI revealed that from April 2016 to Dec 2020, a total of 14 Vietnamese nationals were held in young offenders institutes by the SPS – ten of them were 16 or 17 years old.
In January this year two Vietnamese police officers were seconded to Police Scotland. Though some have commended the innovative approach, concerns have also been raised about the lack of human rights safeguards put in place. There have been reports of people being trafficked directly from Vietnamese police stations.
Trafficking experts have warned for many years about the rise in the number of people being trafficked from Vietnam to Scotland, which it is claimed, is driven by a criminal “mafia”.
Vietnamese nationals are smuggled into Scotland by traffickers and following long and traumatic journeys, are forced to work in “cannabis factories”, caring for plants in run down flats and outbuildings in Scottish towns and cities. Debt bondage, violence and threats to family back home mean they are unable to refuse.
They are often arrested following police raids – reported arrests include that of three Vietnamese nationals found sleeping alongside plants growing in an industrial unit in East Kilbride in 2019 and others at a house in Lochwinnoch this April.
Kirsty Thomson, partner at JustRight Scotland, said the increase in the number of Vietnamese children and young people – presumed victims of drug related exploitation in Scotland – being arrested, charged and detained was reflected in the casework of the organisation’s Scottish Anti-Trafficking and Exploitation Centre.
“Our lawyers started receiving referrals of this nature around autumn last year and they have continued to come in as recently as a few weeks ago,” she added.
“Several of these young people had been held in detention on remand, or are still on remand, and we have also received a case of one young person who has been convicted. The majority of these young people were children at the time of arrest.
“In all of these cases, we think that there were very clear indicators that the young people were potentially victims of human trafficking and exploitation at the time of arrest, yet they were still arrested.
“In a lot of the cases, formal referrals were made to the relevant authority that determines whether someone is a victim of trafficking. Sometimes, this referral was even made by the police at the same time as the arrest, meaning that the authorities actually knew they were potential child victims at the time they were arresting and detaining them.”
Thomson claimed international law, including the Council of Europe Trafficking Convention and the European Convention on Human Rights, was clear on the need for victims to be protected rather than criminalised.
“No child should be detained in Scotland for an act committed because they have been exploited and we have failed to protect them from that harm,” she added. Thomson claimed even when children were released from detention they often had to wait many months to hear if they were being prosecuted.
She said they were fearful of their traffickers in Scotland and also of repercussions in Vietnam where they would be at risk of further harm if returned, including re-trafficking.
Jillian McBride, children’s policy officer at Scottish Refugee Council, claimed that “criminalising survivors of trafficking sends a message to them and their exploiters that our systems will punish rather than protect victims”. She called for a review of the situation.
She added: “This makes it less likely that survivors will be able to get the help and support they need and more likely that they’ll end up back with traffickers including in organised crime groups, and suffer further exploitation.
Earning the trust of young people was not only essential in terms of ensuring their safety, but also in gathering the intelligence needed to investigate the organised criminals behind their exploitation and drug trafficking, McBride argued. “At the moment, there are safeguards within the system that are not working as they should, but also areas that need further exploration,” she added. “That’s why we think a thoroughgoing independent expert review is needed."
Scotland’s Children and Young People’s Commissioner, Bruce Adamson, said he was particularly concerned about the use of remand. “No children should be detained in Young Offenders Institutions in Scotland and my office has raised this issue with the United Nations and the Scottish Parliament,” he added.
“We recently raised serious concerns with the Scottish Government about trafficked children being prosecuted in the adult justice system, which is wholly inappropriate. As the UN Special Rapporteur on Trafficked Persons has made clear, Scotland must ensure that child victims of trafficking are not detained, charged or prosecuted for offences committed in the course of, or as a result of having been trafficked.”
He said “appropriate, secure, places of safety” must be made available for vulnerable children, providing them with the care and protection needed to recover from trauma.
Ten years ago the findings of an Equality and Human Rights Commission's Inquiry into Human Trafficking in Scotland recommended a victim-centred approach to enforcement with practical assistance accessible wherever a victim is found.
The enquiry was chaired by leading human rights lawyer Baroness Helena Kennedy who told The Ferret that reports of the escalating criminalisation of young people were “very concerning”.
She added: “It is really important that people who are trafficked and coerced into criminal activity, especially children and young persons, are not put into the criminal system but are supported and helped get free of their traffickers.
“Even in prison they feel the pressure of what might be done to their mothers or siblings back home if they speak out about what they are forced to do and to name names. What they need is great social work to establish trust.”
However detective superintendent Fil Capaldi, head of Police Scotland's National Human Trafficking Unit said eight cases raised by human rights organisations had been reviewed in June this year and “no concerns in respect of the policing response were identified”.
He added: "Police Scotland has a clear statutory duty to take such lawful measures and make such reports to the appropriate prosecutor, as may be needed to bring offenders to justice. The prosecutor is advised, at the earliest opportunity, of a person’s status as a potential victim of trafficking and police officers will refer that person to the Home Office via the National Referral Mechanism (NRM).”
Support was available through the NRM, the official UK system for identifying victims of human trafficking, Capaldi claimed, to ensure they receive the appropriate protection and support. Police, he added, were not able to be sure when arresting someone whether they had been trafficked.
“Often a person will not initially disclose that they are a potential victim of human trafficking until much later, including whilst on remand,” he said. “Decisions in relation to prosecution are for COPFS. Decisions on remand and imprisonment are for the Courts.”
A spokesperson for the Crown Office and Procurator Fiscal Service said: “Scotland’s prosecutors are committed to protecting the human rights of the victims of trafficking, as well as ensuring effective investigation and prosecution of related criminality.
“There is a strong presumption against prosecution of child victims who have committed a criminal offence as a consequence of being a victim of trafficking or exploitation. Prosecutors consider information from any source which suggests that an accused person may be a victim of trafficking.”
A Scottish Government spokesperson said that any form of human trafficking or exploitation was “completely unacceptable”.
“In all cases where it is suspected that a child may be a victim of exploitation or trafficking the child’s safety is paramount and child protection procedures must be activated immediately,” they added.
“Decisions in relation to prosecution in cases involving potential victims are for the Crown Office and Procurator Fiscal Service and are taken in line with the Lord Advocate’s instructions which emphasise a strong presumption against prosecution.
“We remain committed to working with all partners to keep children out of the criminal justice system and prevent the criminalisation of all children, wherever possible.”
This story was co-published with the Sunday National.
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