I think that if you put a statutory defence on the face of the bill, it would lead to more injustices than if I, as Lord Advocate, were to issue instructions.
We would take our lead from Parliament as to the extent of any defence that was placed on the face of the bill. You know about the dynamics of human trafficking—I am sure that you have received a lot of evidence and read a lot of information on that. Victims of human trafficking often do not know that they are victims of human trafficking. It may be that they have a fear of authority from their experience in their own country, which can include a fear of solicitors.
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A statutory defence places the onus on the accused to raise the defence. In order for that defence to be considered by a jury, it must have an evidential basis. There is no burden of proof on an accused person, but the onus is on them to raise the defence, and the defence must be rooted in evidence before it can be considered by the jury.
The Northern Irish legislation, the English and Welsh legislation and, indeed, the directive, talk about compulsion. We have the common-law offence of coercion, which is very narrow and is not appropriate for the territory that we are in. I said that the defence must have an evidential basis in order for it to be considered by the jury, but I repeat that victims of human trafficking often do not know that they are victims of human trafficking. They can have social and economic bonds with the trafficker.
It seems to me that the instructions that I will issue to prosecutors and the police will capture a lot more than would be captured if the bill were to include a statutory defence. Let me explain. In the approach that we currently take to victims of human trafficking, we can deal with intelligence or information from organisations that support victims in the field, such as TARA. I know of one case involving cannabis farms in which information that was based primarily on intelligence came to us in the middle of a trial.
Our procedure to ensure a consistent approach is to investigate when someone claims that they are a victim of human trafficking, because it is important that victims of human trafficking have credibility. It is easy for someone who is charged with a serious offence to say that they are a victim of human trafficking, so such claims must be properly investigated. If there is credible evidence or intelligence, it will go to Kathleen Harper, who is the head of the national sexual crimes unit, for a decision on what to do. We have abandoned prosecutions on the basis of intelligence, and we will continue to do that.
There are problems with statutory defences, including statutory defences that are based on the principle of fair notice. The Crown has to receive notice of what the defence is. In criminal procedure, that usually has to be given a certain number of days before the trial commences—the range is from 10 days to two days, depending on what the defence is. There are exceptional circumstances in which the court can admit a defence during the trial. The point that I am making is that a statutory defence would apply to criminal proceedings and, in general terms, it would have to be lodged before the trial commenced.
Human trafficking does not necessarily follow that kind of rigid procedural structure. I will not go into the details, but we are currently considering a case in which three persons have been convicted of shoplifting. The intelligence on those people only came in after conviction and sentencing. A statutory defence would not cover such circumstances. If the information is credible, we have the necessary means to apply to the court, and the court can set aside the conviction.
We need a much more flexible approach, in which the Lord Advocate issues not guidance but instructions to our prosecutors and to the police, and which allows agencies and NGOs that work with victims in the field to have a channel of communication with the Crown. That will be far more productive and lead to fewer injustices than a rigid statutory defence in the bill would. In my view, it is much better to do this by Lord Advocate’s instructions, which prosecutors and the chief constable are obliged to follow.