دانلود کتاب Human Trafficking and Modern Slavery Law and Practice

فهرست مطالب :

Foreword to second edition\nForeword to first edition\nPreface\nEditors’ biographies\nContributors’ biographies\nTable of Statutes\nTable of Statutory Instruments\nTable of European Legislation\nTable of Cases\nChapter 1 Definitions, policy and legal frameworks by Michelle Brewer\n Introduction\n Legal and policy framework for definition of human trafficking\n General\n Definition\n The three elements of trafficking\n First element of the trafficking definition: the act\n Recruitment\n Transportation\n Transfer\n Harbouring\n Receipt of persons\n Second element of the trafficking definition: the means\n Coercion\n Deception and fraud\n Abuse of power or of a position of vulnerability\n The giving or receiving of payments or benefits to achieve the consent of a person having control over another person\n Third element of the trafficking definition: for the purpose of exploitation\n A child-sensitive approach\n Third element: exploitation of children\n Credibility: a child-sensitive approach\n Definition of victims of slavery, servitude and forced or compulsory labour\n The ‘means’ element of the definition of modern slavery\n Coercion\n Threat of a penalty\n Smuggling legislation\nChapter 2 Determination of trafficking status by Emma Fitzsimons and Michelle Brewer\n Introduction\n Status of an NRM trafficking decision in First-Tier Tribunal (‘FTT’) (IAC) and Upper Tribunal decision-making\n Identification as a ‘protective duty’ and ECHR, Art 4\n National Referral Mechanism\n Identifying victims of trafficking\n First responders\n Duty to notify\n Single Competent Authority\n Identification decision-making process\n Reasonable grounds decision\n Standard and burden of proof\n Assessment of evidence of trafficking\n Indicators of trafficking\n Complex issues in identification\n Experiences of victims and identification\n The conduct of traffickers\n ‘Credibility’ and mitigating factors\n Expert evidence\n Evidence from support organisations\n Evidence from other experts\n Timing of decision\n Relevance of criminal investigations to the NRM decision\n Consequences of positive reasonable grounds decision\n Recovery and reflection period\n Relevance of trafficking decisions in other proceedings\n Negative reasonable grounds decision\n Request to reconsider the decision\n Conclusive grounds decision\n Standard of proof\n Assessment\n Timing of decision\n Consequences of positive conclusive grounds decision\n Negative conclusive grounds\n Challenging negative decisions\n Multi-Agency Assurance Panels (‘MAAPs’)\n Victims who go missing\n Asylum seekers\n Historical victims\n Common grounds of challenge to negative identification decisions\nChapter 3 Age disputes in immigration and criminal proceedings by Shu Shin Luh\n Introduction\n Importance and relevance of age in the context of social welfare law\n Importance and relevance of age in the context of immigration law\n Importance and relevance of age in the context of youth justice\n Decision to prosecute\n First appearances\n Bail\n Mode of trial\n Assessing age\n Approach to be taken by a court to determine age in a social welfare and immigration law context\n Approach of criminal court to age disputes\nChapter 4 Criminal offences of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE\n Introduction\n Offences under the Modern Slavery Act 2015\n Slavery, servitude and forced or compulsory labour: MSA 2015, s 1\n Human trafficking: MSA 2015, s 2\n Exploitation: MSA 2015, s 3\n Transposition\n Sentencing\n Committing any offence with intent to commit an offence under s 2\n Unlawful restriction of liberty\n Kidnapping and false imprisonment\n Child abduction\n Sentence\n Immigration offences\n Sentence\n Offences related to the ‘use’ of victims of slavery and trafficking\n Sexual exploitation\n Drug offences\n Worker exploitation\n Other offences\n Orders on conviction\n Confiscation\n Forfeiture\n Civil orders\n Commentary on MSA\nChapter 5 Criminal defences available to victims of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE\n Introduction\n Non-punishment principle: International instrument\n Palermo Protocol\n Non-punishment principle: Regional instruments\n ECAT, Article 26\n The EU Trafficking Directive\n Non-punishment principle: Domestic law\n CPS policy guidance\n Prosecutorial staged inquiry\n First stage: Is there a reason to believe that the person is a victim of trafficking or slavery?\n Second stage: Is there clear evidence of duress?\n Third stage: Is there clear evidence of a s 45 defence?\n Fourth stage: Is it in the public interest to prosecute?\n Abuse of process\n Excluded offences under Sch 4\n Right to a fair trial and/or misconduct by the prosecution\n Complex cases\n Is it in the public interest to prosecute the victim of trafficking?\n Presenting without delay\n Good cause\n Article 31\n Annex\nChapter 6 Victims of human trafficking: at the police station by Steven Bird, Michelle Brewer and Philippa Southwell\n Arrival at the police station\n Risk assessment\n Police training and development\n Provision of rights\n Criminal Defence Direct\n Duty to attend the police station\n Arrival of the legal representative at the police station\n Interaction with the detained person\n Interpreters\n Initial meeting with the client\n Identifying the client as a potential victim of trafficking: disclosure\n Instructions not to disclose: the ethical dilemma\n Advice\n Positive obligations owed to a victim of trafficking by the state\n The NRM and the duty to notify\n Crime recording\n The police interview\n Age of potential victim of trafficking\n Appropriate adult\n After the interview\n Police bail\n Limits on period of detention without charge\n The charging decision\n Interviews where disclosure has been made\n Police interviewing techniques with vulnerable witnesses\n Achieving Best Evidence interviews\nChapter 7 Criminal court process by Felicity Gerry QC, Paramjit Ahluwalia, Ben Douglas-Jones QC and Philippa Southwell\n Introduction\n Police station and charge\n Post-charge\n Magistrates’ court\n First appearance\n Assessing the evidence\n Bail application\n Custody time limits\n Age assessments\n Abuse of process\n Section 45\n Summary only offences\n Either way offences\n Crown Court\n PTPH – form and key issues\n Fitness to plead: Crown Court\n The current test for unfitness to plead\n Fitness to plead procedure\n Trial of the acts or omissions\n Disposal rather than sentence\n Fitness to plead: magistrates’ and youth courts\n Disposal of defendants suffering from a mental disorder\n The role of expert evidence\n Adducing expert evidence\n Admissibility of expert evidence\n Indictment and severance\n Arraignment\n Defence statements\n Disclosure requests\n Bad character applications\n Trial issues\n Questioning of the ‘officer in the case’\n Exclusion of interview\n Adverse inferences from failure to mention facts in police interview\n Defendant giving evidence\n Absconders\n Pre-sentencing application to vacate a guilty plea\n Sentencing\nChapter 8 Special measures for victims of trafficking by Michelle Brewer, Philippa Southwell, Rachel Witkin, Dr Eileen Walsh, Kalvir Kaur, Paramjit Ahluwalia and Felicity Gerry QC\n General principles\n Understanding the psychological impact of human trafficking\n Trauma-based mental health problems and legal proceedings\n Non-visible physical injuries\n Children and young people\n Best practice methods of working with victims of trafficking for legal practitioners\n General principles\n Expert medical evidence\n Working appropriately and effectively with victims of trafficking\n Effective interviewing – best practice\n Home Office Statutory Guidance on Interviewing Victims of Trafficking\n Special measures in Immigration and Asylum Tribunal proceedings\n Tribunal Guidance and Practice Directions\n The Tribunal Procedure Rules\n Examples of special measures and reasonable adjustments\n Intermediaries\n Anonymity\n Private hearings\n Special measures in criminal proceedings\n Introduction\n Trauma – informed approach\n Eligibility for special measures for witnesses in criminal proceedings\n Child witnesses\n Applications for special measures for witnesses\n Ground rules hearings\n Special measures for accused persons/defendants who are victims of trafficking\n Child defendants\n Vulnerable adult defendants\n Intermediaries\n Witness anonymity\n Reporting identity of child witnesses and child defendants\n Adult defendant anonymity\n Applications to move proceedings\n Applications to hold a Crown Court hearing in camera\nChapter 9 Criminal appeal process by Ben Douglas-Jones QC, Michelle Brewer, Philippa Southwell and Paramjit Ahluwalia\n Introduction\n Appeals to the Crown Court\n Applications to re-open cases under s 142\n Committal for sentence – no bar to re-opening\n Effect of re-opening\n Appeals to the Court of Appeal\n Appeal against sentence\n Grounds of appeal against sentence\n Common grounds of challenge on appeal against conviction\n Fresh evidence\n McCook correspondence\n Decisions of Competent Authority\n Extensions of time\n Appeal following a guilty plea in the Crown Court\n Further applications that may be made with an application for leave to appeal\n Applications for bail on appeal\n Anonymity for applicants in the Court of Appeal Criminal Division\n Requests to expedite the hearing\n Applications for funding\n Request for transcripts\n Request for an oral leave hearing\n Absconding/missing\n Applications to the Criminal Cases Review Commission\n Appeals by a prosecutor against a ‘terminating’ ruling\nChapter 10 International protection claims brought by victims of human trafficking and modern slavery by Michelle Brewer and Gemma Loughran\n Introduction\n The role of the NRM identification decision in Tribunal decision making\n Refugee Convention\n Introduction\n Definition\n Well-founded fear of persecution\n For reasons of race, religion, nationality, membership of a particular social group or political opinion\n Unable or … unwilling to avail himself of the protection of that country\n Internal relocation\n Credibility\n European Convention on Human Rights\n Introduction\n Trauma-based claims\n Slavery\n Servitude\n Forced or compulsory labour\n Child labour\n Positive obligations under ECHR, Art 4\n Expert evidence in asylum and immigration proceedings\nChapter 11 Safeguarding child and adult victims of trafficking and immigration detention by Shu Shin Luh and Christine Beddoe\n Safeguarding and immigration detention: children\n Introduction\n Policy and guidance\n Assessment of vulnerability\n Children detained in immigration or criminal proceedings\n The duty to notify\n Missing children\n County lines trafficking\n Child trafficking guardians\n Policy versus practice\n Safeguarding children who may be affected by immigration control\n The s 55 safeguarding duty\n Detention and safeguarding of children\n Safeguarding and immigration detention: adults\n Adults at risk: Immigration Act 2016 and statutory guidance\n Adults at risk: statutory guidance and practice\n Adults at risk and trafficking\n Safeguarding and release\nChapter 12 Compensation for victims of trafficking by Maya Sikand\n Introduction\n Compensatory obligations\n Compensation in criminal proceedings\n Compensation orders\n Slavery and trafficking reparation orders\n The Criminal Injuries Compensation Scheme\n Eligibility\n Time limits\n Level of awards\n Grounds for withholding or reducing an award\n The Miscarriage of Justice Application Scheme\n Are victims of trafficking who have had their convictions set aside eligible under the Scheme?\n Procedure\n The award\n Non-pecuniary loss\n Human Rights Act 1998 claims against public bodies\n The investigative duty\n The scope of the investigative duty revisited\n Just satisfaction\n Claims against traffickers\n Tortious claims against individual traffickers\n Tortious and other claims against a company\n Employment tribunal claims\nChapter 13 Public funding for victims of trafficking by Steven Bird and Lindsay Cundall\n Advice on arrest for a criminal offence\n Work after release from police station but before charge\n Witnesses at risk of self-incrimination\n Advice during criminal court proceedings at first instance\n Magistrates’ court proceedings\n Crown Court proceedings\n Prior authority for disbursements\n Defendant intermediaries\n Extension of legal aid to Queen’s Counsel or two advocates\n Transfers of legal aid\n Billing time limits\n Advice on appeal against conviction and/or sentence where the solicitors acted at trial\n Appeals from the magistrates’ court to the Crown Court\n Appeals from the Crown Court to the Court of Appeal\n Funding in the Court of Appeal (Criminal Division)\n Applications to the Court of Appeal out of time and CCRC applications: Advice and Assistance Scheme\n Sufficient Benefit Test\n Financial test\n Previous advice\n Financial limits and applications to extend\n CCRC applications\n Postal application\n Telephone advice\n Outward travel\n Previous advice under the Legal Advice and Assistance Scheme\n Counsel’s fees\n Applications to re-open the case in the magistrates’ court\n Applications for compensation under s 133\n The availability of legal aid for potential victims of trafficking on immigration matters\n The gap in legal aid provision for victims of trafficking\n Exceptional case funding\n Legal aid for potential victims of trafficking in immigration detention\n What practical steps are needed to represent a potential victim of trafficking under legal aid in immigration matters?\n Legal help\n Controlled Legal Representation\n Legal Help and CLR: extensions, costs limits and experts\n Civil legal aid for judicial review\n Investigative representation\n Full representation\n Emergency certificate\n Substantive certificate\n Declaration against instructions\n The permission decision, amending scope\n Experts and extensions of cost limits\n Civil legal aid: financial risks\nChapter 14 Extradition by Mary Westcott\n Introduction\n Extradition proceedings\n Generally\n Time limits\n The Crown Prosecution Service and the NCA\n Common challenges\n Procedural issues\n Evidence\n Victim identification\n Undermining the NRM?\n Substantive issues\nChapter 15 Trafficking operations and modus operandi by Hossein Zahir QC, Philippa Southwell, Phil Brewer and Steve Harvey\n Introduction\n Exploitation typologies and common control methods\n Physical and sexual violence\n Deception\n Debt\n Isolation\n Dependency\n Emotional control\n Culture and faith\n Family involvement\n Modus operandi of known modern slavery cases\n Post Modern Slavery Act 2015\n Sexual exploitation\n Labour exploitation\n Crime\n Criminal exploitation\n Criminal exploitation and ‘county lines’\n Trafficking and terrorism\n An international perspective\n A domestic perspective\n Common forms of forced criminality\nChapter 16 Ethics by Felicity Gerry QC and Philippa Southwell\n Whether to refer a client through the National Referral Mechanism\n How to advise a client in a police interview\n Privilege and confidentiality issues\nChapter 17 Investigating trafficking and exploitation offences by Caroline Haughey OBE, QC, Phil Brewer, Michelle Brewer and Ben Douglas-Jones QC\n The complainant\n Investigatory interviews\n Children\n PEACE model of investigatory interviewing\n Planning and preparation\n Engage and explain\n Account and challenge\n Closure\n Investigations beyond the complainant’s account\n Other lines of enquiry\n International material\n The accused\n Charging\n Risk orders\n Disclosure\n Trial\nChapter 18 Forced criminality and non-criminalisation of trafficked persons in the International Criminal Court by Wayne Jordash QC\n Introduction\n Current status on recognition of non-criminalisation under international law\n Non-criminalisation generally\n UN Model Law against Trafficking in Persons (2009)\n Non-criminalisation in armed conflict\n Non-criminalisation in international criminal law\n Non-criminalisation and nexus between the trafficking and offending\n Duress as a defence under international criminal law\n The ICC’s Rome Statute\n Evolution of duress in international criminal law\n Adoption of Art 31(1)(d) of the Rome Statute\n Article 31(1)(d) and unlawful killing\n Article 31(1)(d) conditions\n Threat of imminent death or of continuing or imminent serious bodily harm\n The person acted necessarily and reasonably to avoid the threat\n The person acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided\n Article 31(1)(d) defence of duress for trafficked persons\n The Ongwen defence\n How will the ICC approach Ongwen’s Art 31(1)(d) defence?\n Article 31(1)(d) in action\n Mere possibility of death not sufficient\n Crime and threat analysis\n Avoiding the threat\n Proportionality and the gravest of crimes\n Duress and trafficking\nChapter 19 Compliance and trafficking by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC\n Corporate compliance, business and human rights\n Section 54: Modern Slavery Act 2015\n Modern slavery compliance statement\n Differing organisational structures\n Content of the statement\n Consequences of non-compliance\n Corporate criminal offences\n Section 54 statements: effectiveness and the future of compliance\n Joint committee report\n Independent Review of MSA 2015\n Home Office consultation\n Ethical Trading Initiative’s modern slavery statements evaluation framework\n Overview\n Section 1: Structure, business and supply chains\n Section 2: Policies in relation to slavery and human trafficking\n Section 3: Risk assessment, prevention and mitigation\n Section 4: Due diligence processes\n Section 5: Effectiveness, measured against appropriate key performance indicators\n Section 6: Training and capacity building\n Anticipated changes to s 54\n Wales\n California Supply Chains Act 2012 – a model for compliance\nIndex