The following section, Crime Victims – United Kingdom, contains information on the legal situation in the UK. If conditions are different in individual regions, for example in Scotland, this will be indicated.
1. Before Reporting to the Police
2. Making a Police Statement
3. Initiation of Legal Proceedings
4. Criminal Court Proceedings
5. After the Verdict
1. Before Reporting to the Police
A. Consult a Counsel!
If a sex worker is or becomes a victim of trafficking in women, the police may be interested in her statements as a victim or as a witness – for instance against the perpetrators of trafficking in women, against persons who have brought her into the country or to whom she has had to give part of her earnings.
Women who work as sex workers without the appropriate residence or work permits are committing an offence and may be removed from the UK. They should therefore always seek advice before going to the police. Confidential advice is offered by advisory centres for migrant prostitutes.
Without the woman´s permission, advisory centres will not forward personal information (e.g. her name and address) to the police or foreign authorities. The advice is therefore confidential.
However, the woman may be encouraged to contact the police, or to allow
them to do so on her behalf, if it is felt to be in the woman’s interests to do so.
B. Confidential Legal Advice
Advisory centres can advise the woman and arrange contact with specialist lawyers.
The services of advisory centres are free of charge. They often are able to recommend lawyers who are willing to give an initial appointment (usually 30 minutes) free of charge. Subsequent appointments will be required to be paid for, but free Legal Aid may be available. This depends on the type of advice and action to be taken. Some advice centres have visiting lawyers who give legal advice on a pro bono basis at certain times.
C. Confidential Medical Examination
In cases of violence against a woman, a medical examination can be very important in order to document injuries and traces of the deed. This means that evidence of the deed is recorded and the woman has time to think about whether or not she wishes to report the crime.
Advisory centres also have addresses of doctors and/or clinics where the woman can go for a confidential medical examination. They can arrange a medical examination. Emergency medical treatment would always be given regardless of insurance status. Medical examinations conducted for specific purposes (e.g. HIV/Hepatitis B and C testing) when carried out at a centre for genito-urinary medicine (GUM Clinics) would normally be done free of charge with or without referral from another doctor or advice clinic/centre, regardless of whether the person has travel insurance/social security. Other medical examinations may be charged to the patient.
When a woman attends a National Health System (NHS) hospital department or General Practitioner’s surgery she will be asked to sign a declaration of time resident in the UK and she will be required to give certain information regarding nationality, etc. If the doctor considers the treatment (including medical examinations and blood tests) necessary, she may be asked to pay.
D. Police and Justice Prejudices against Prostitutes
Nowadays it is rare for violent and/or sexual crimes against sex workers to be inadequately investigated because of prejudices on the part of police, public prosecutors and judges. All large towns have specialist police departments for the examination of victims of sexual crimes. In addition, the woman may always say she would rather speak with a female officer.
Rapes and crimes of violence committed against sex workers are difficult to prove in court and to obtain convictions because of the nature of the victims´ working circumstances, but there have been a significant number of successful convictions over last years. Police no longer dismiss reports of crimes against sex workers.
E. Trafficking in Women
1. Trafficking in Women is….
when a woman is actively encouraged through false promises regarding work possibilities and earnings to come to the UK, regardless of whether a job in another field was promised her or whether she was willing to work in prostitution;
when a sex worker´s identity papers or earnings are taken away from her;
when a woman is forced into prostitution or into giving sexual services;
when a sex worker is blackmailed, threatened, humiliated, beaten, raped or imprisoned;
when a woman is given drugs to render her incapable of resisting her illegal removal to the UK.
In these instances, it is irrelevant whether the woman previously worked as a sex worker, or whether she was willing to work as a sex worker because/while she was misinformed about work conditions and earnings.
It is an offence in Scottish Law to procure or to attempt any woman or girl to become a common prostitute in any part of the world (Criminal Law (Consolidation) (Scotland) Act 1995 section 7). Also, facilitating the travel of a prostitute or facilitating trafficking for the purpose of prostitution is a penal offence (section 22 of the Criminal Justice (Scotland) Act 2003 and sections 57-60 of the Sexual Offences Act 2003 (England and Wales).
Under section 25 of the Immigration Act 1971, it is a criminal offence to assist the unlawful immigration of an individual to an EU member state if a person facilitates the commission of a breach of immigration law, and the immigrant concerned is not an EU citizen. This offence carries a maximum sentence of 14 years imprisonment.
2. Special Rights for Victims of Trafficking
Women who are victims of trafficking have special rights and are entitled to special support services.
For instance, they may obtain a limited residence permit or be granted a postponement of deportation while thinking about whether to give evidence as witness against the perpetrator(s). This depends on the discretion of the police Assistant Chief Constable and the Assistant Director of the Immigration Service (Enforcement).
During this time they are given safe accommodation. They are entitled to receive support from the police/prosecutors and non-state advisory centres.
For details on special offers for, and special rights of victims of trafficking in women, see below.
2. Making a Police Statement
If a woman is a victim of crime (such as trafficking in women, rape, procuration), police requires her to make a statement about this crime in the police station as victim or witness against perpetrators, or against persons who have brought her into the country or to whom she has had to give part of her earnings.
If the woman is suspected of having committed a crime in another matter (e.g. theft, fraud), she is an accused party and has different rights to when a witness! For these cases, see prosecution.
A. Right to Remain Silent
A witness is not obliged to speak when questioned by the police. Even if she does speak, she may remain silent about anything which incriminates her or a member of her family.
She cannot be forced to attend the police station or be kept at the police station unless she is arrested (see prosecution).
B. Female Officer
If the woman wishes to make a statement, she is entitled to be interrogated by a female officer.
The woman is entitled to the services of a translator in her own language. If she feels unable to trust the translator for a well-founded reason, she is entitled to refuse him/her and ask for another translator. This decision depends on the discretion of the authorities.
She is entitled to the presence of her lawyer at questioning.
Hint: Memorise a lawyer’s telephone number!
E. Trusted Person
She is also entitled to demand the presence of another trusted person, e.g. a friend or an advisor.
F. No Custody
As a witness, the woman may not be held in police custody. However, she may be detained if she is also accused of illegal residence, illegal employment or any other crime (see prosecution).
G. Special Rights for Trafficked Women
If the woman´s statement or other evidence leads the police to believe that she may have been a victim of trafficking in women, she has special rights. The police is obliged to inform her about her special rights and to refer to specialist NGO´s and to Witness Services, for, e.g., safe accommodation and preparation.
1. No Consideration Period
Essentially, in the UK the woman is not entitled to a consideration period to decide whether or not to give evidence as a witness.
But: A woman who has been a victim or witness of trafficking in women and who is living in the UK without a residence permit can obtain one under the following conditions:
First it is important that the Immigration Service are notified at the earliest opportunity in order to assess her status. It depends on the discretion of the police Assistant Chief Constable and the Assistant Director of the Immigration Service (Enforcement) to grant a residence permit or to keep her merely from being deported. During this time she can decide whether she wants to give evidence in court proceedings against the perpetrator(s).
She has to recognise that if she refuses to give evidence when asked to by the prosecution, they may decide to issue a subpoena which forces her to give evidence in court.
2. Right to Residency
Where a victim has provided material assistance to a police investigation of a serious crime, and is required as a witness on criminal proceedings, there are existing arrangements for the police to apply to the Immigration Service for regularisation of her stay. Where a witness expresses fear to return to her country of origin, this will be considered by the Immigration Service. Particular considerations will include the overall situation in the country concerned, and whether the particular experiences of the woman are likely to mean that she will face an increased risk (for details, see Entering the UK)
3. Advice and Support
The woman is entitled to obtain advice and support from advisory centres. The woman should insist that the police establish contact to such an advisory center.
a) Accommodation and Help
Advisory centres offer her save accommodation, socio-psychological care and support in dealing with authorities.
b) Legal Advice
They can also put the woman in contact with a female lawyer to inform her of her rights, so that she may decide for or against giving evidence.
Often, advisory centres are able to recommend lawyers who are willing to give an initial appointment (usually 30 minutes) free of charge. Subsequent appointments will be required to be paid for, but free Legal Aid may be available. This depends on the type of advice and action to be taken. Some advisory centres have visiting lawyers who give legal advice on a pro bono basis at certain times.
In some cases the woman may be able to obtain state payment of the lawyer´s fees (“Legal Aid”). It is strictly limited to certain circumstances. There are two types of civil legal aid:
“advice and assistance”:
This helps pay for advice from a solicitor on any matter of UK law. However, with a few exceptions it will not normally cover “representation”– that is, putting someone’s case in court.
civil legal aid:
This will provide funding for a solicitor to put the woman’s case in court. It covers the preparation work, as well as the hearing itself, and can provide funding for lawyers, experts etc. Most civil legal aid cases start with advice and assistance. While the Scottish Legal Aid Board is particular to Scotland, the rules are very similar in other parts of the UK.
c) (No) Criminal Proceedings Against the Victim/Witness
If the woman has committed an offence herself, this offence will be prosecuted. In other words, she will have to undergo a criminal court proceeding, see below. However, if as a part of these proceedings the woman is able to prove that the offence committed by her is related to another crime of which she was a victim, the public prosecutor (Procurator Fiscal / Lord Advocate) has discretion on whether it is in the public interest to prosecute the crime.
3. Initiation of Legal Proceedings
After questioning the woman and other witnesses the police and the public prosecutor (“Procurator Fiscal”) decide whether to initiate legal proceedings against the perpetrator(s). These proceedings have the goal of investigating the case and preparing the court proceedings. During the investigation, the woman may be questioned again by the police or by the public prosecutor. At the end of the criminal proceedings the public prosecutor decides whether to accuse the perpetrator(s) before the criminal court.
A. Duration of Legal Proceedings
Often a long time passes between the woman´s first hearing as witness at the police, the beginning of legal proceedings and her statement as witness. This is because proceedings relating to trafficking in human beings and similar crimes are often large-scale processes involving many accused parties.
In England and Wales there is no time limit on proceedings.
Under Scots law, it depends on whether a summary (quick) or solemn (serious) procedure is to be used. The Procurator Fiscal decides whether action is to be taken. The procedure depends on the perceived gravity of the offence. In summary cases where the accused has been brought from custody, a 40 days rule apples. The trial must start within 40 days of the bringing of the complaint against the accused, or the accused is released from custody and cannot be tried. In solemn cases where the accused has been brought from custody, the “110-day rule” apples. As soon as the accused has appeared in court and been remanded in custody, the Procurator Fiscal must prepare and serve a custody statement. The public prosecutor (Department) has eight days to complete initial enquiries. The Procurator Fiscal gives instructions for further enquiries and identity parades to be held if necessary, and requests full statements. Following judicial examination, the statements are reviewed and the Procurator Fiscal prepares a report for the “Crown Office” (Department of the Scottish Executive to provide independent public prosecution) seeking authority to have the accused fully committed.
The Department must prepare the prosecution in custody cases in less than 110 days, which start running by fully committing the accused. If the accused has not been hold in custody, the trial must take place within one year of commencement of committal. Only very exceptional circumstances allow this time to be extended by a judge through application by the prosecutor.
The Criminal Procedure (Amendment) Scotland Act 2004 will be implemented in 2005 and makes significant changes to solemn procedure. The 110-day rule will become a 140-day rule and the sanction on the prosecution for failure to comply will no longer be the collapse of the case.
B. Trafficked Women
1. Right to residence
If the woman decides to give evidence in court as witness against the perpetrator(s), she may receive a residence permit. The residence permit is granted from the beginning of the legal proceedings until the final sentence (including possible reviews of the sentence). The granting of the residence permit depends on the discretion of the police Assistant Chief Constable and the Assistant Director of the Immigration Service (Enforcement).
Particular considerations will include the overall situation in the country concerned, and whether the particular experiences of the individual concerned are likely to mean that they face an increased risk. For that reason, participation in the special witness protection program run by the police is not necessary in order to obtain a residence permit. It might be necessary for protection, though.
2. Living Conditions
Victims of trafficking in women and other women who have been granted a toleration as witness may be accepted into care programmes run by advisory centres, or into protection schemes run by the police.
a) Care Programmes at Advisory Centres
In some cities organisations exist to offer safe accommodation, professional socio-psychological care or any other support to crime victims.
Information about local care programs are given by the police or by advisory centres. There are many NGO´s in the UK who are potentially in contact with victims of trafficking in human beings. At present, however, there is no single specialist NGO who can act as a focal point in the very large potential network of organisations who may be involved in this issue.
Local multi-agency groups act as a focal point for information about the independent safe houses run by a variety of NGOs (e.g. Eaves Housing, Refugee Arrivals Project, Women’s Aid).
b)Accommodation, Language Courses, Study or Work
In the UK, specialist housing providers may be able to identify and advocate for victims (e.g. shelters for women, escaping abusive and violent relationships). A woman should ask the police or the advisory centres to obtain the addresses (e.g. Eaves Housing, Refugee Arrivals Project, Women`s Aid).
Specific local NGOs may be able to provide support after accepting referrals from police forces and statutory service providers. The services include education and training as well as English lessons.
c) Police Protection Schemes
If the witness is to be further questioned or if dangerous situations arise, the woman may request police protection.
The decision of what type of protection to provide will ultimately be at the discretion of the Assistant Chief Constable of the police force in the applicable region.
d) Social Benefits
During the legal proceedings a woman who testifies as a witness is entitled to public welfare funds for accommodation and maintenance (food, clothing etc.). If she lives in safe accommodation, she is provided with board, lodging and pocket money.
Help available in accordance with the provision of services will be at the discretion of the local authorities involved. Cash payments would normally be made through the Social Security benefit system.
In addition, she is entitled to medical and psychological care. At the discretion of the health authorities involved she may choose the doctor herself.
She also has access to professional training courses (speaking and reading/writing English). Specific local NGOs are likely to be able to provide advice with these and any other courses available.
While waiting for the trial to begin the woman is not permitted to work, unless she has a legal right to work in the UK (work permit).
The consequences of breaching conditions regarding employment may include removal from the UK, curtailment of existing leave, refusal of future application for entry or leave to remain. She may also be committing a criminal offence and therefore be liable for prosecution. For details, please see Entering the United Kingdom as well as Staying in the UK and Sex Work.
3. Decision to Appear as Witness or Civil Party
Before the commencement of court proceedings, the woman has no right to decide whether to give evidence as witness only, or whether to appear as the injured party or civil party. In criminal proceedings she just has the status of a witness. Nevertheless, she has the right to act as the pursuer in civil proceedings.
a) Role as Witness
1. Limited to the Giving of Evidence as Witness
As a witness, the woman is invited to the court only to give evidence. She will be interviewed by the prosecutor prior to giving evidence (precognition).
She may neither participate in earlier appointments nor may she obtain information regarding the contents of the files. She is not informed about the courses of proceedings, nor is she able to influence these.
2. No Company of a Lawyer
As a witness, the woman is not entitled to appear in court in the company of a lawyer.
b) Rights as Civil Party
As a pursuer in civil proceedings, the woman has considerably more rights than as a witness in criminal proceedings:
1. Right to View Documentation
As a pursuer in civil proceedings, she is entitled to view documentation of the proceedings.
2. Participation in All Appointments
She may participate in court appointments, she has got the right of access to records and in the proceedings the right to make applications.
3. Lawyer / Legal Advice
As a pursuer she is also entitled to be represented by a lawyer. She is not entitled to a pro bono attorney (legal services given for free by the lawyer) or legal services paid by the state, but legal aid may be available in some circumstances, although this is severely restricted in civil proceedings.
Civil legal aid is available in the following cases: divorce and other matters affecting family and children; actions for compensation for injuries resulting from an accident, or medical negligence; housing matters such as rent or mortgage arrears, repairs, eviction; debt; immigration, nationality, or asylum.
If the woman decides to see a solicitor, she can look for a solicitor whose office shows the legal aid logo (shown on the front of the leaflet Civil Legal Assistance – a simple guide). Citizens Advice Bureaux usually have lists of solicitors in their area, and should be able to tell her which firms are experienced in the appropriate area of law. She also can look in Yellow Pages or contact the Law Society of the UK.
To receive legal aid, in Scotland, the Scottish Legal Aid Board has to decide that
the person qualifies financially,
there is a legal basis for the case;
it is reasonable in the particular circumstances of the case that the person should receive legal aid to receive public funds to raise or defend court proceedings.In other words, it may not be reasonable to grant legal aid if the person being sued has no resources, or if the costs of the case will be much more than may be acquired in damages (money paid to the person who has brought the action if it is successful) and it looks unlikely that the case will succeed, or if financial help is not available from another source (e.g. a trade union, insurance company or professional body).
c) Conditions for Civil Party Status
If the woman wants to act as a pursuer in civil proceedings, she may apply for this after the civil wrong has been committed. The deadline for obtaining this procedural status is fixed by five years from the onset of the civil wrong. Moreover, a civil wrong must have been committed (e.g. battery, trespass, unlawful touching).
4. Criminal Court Proceedings
When criminal proceedings are opened, the crime victim is asked to give her evidence as a victim or witness. At the end of the proceedings, the court issues a verdict as to whether the accused is guilty or not.
A. Duration of Court Proceedings
Proceedings relating to trafficking in human beings and similar crimes are often long-winded, large-scale processes. Many details are dealt with and sometimes many accused parties prosecuted all at once. It is therefore not possible to give an estimate of the duration of such a trial, but the victim has to be prepared that it might take some time.
B. A Witness Gives Evidence
The following explanations apply to the statement made by the woman who is a crime victim as a witness in criminal proceedings.
The statement is given either in the courses of one day or of several days. Occasionally the witness may also be asked to attend a second time later in the proceedings because new questions have arisen.
Questions are put to the witness by the public prosecution and then cross-examined by the defence.
3. Obligation to Testify
The witness must answer questions truthfully and omit nothing; otherwise she risks criminal action against her on grounds of perjury. She is obliged to give testimony also if questioned by the prosecutor and defence advocates if subpoenaed to appear in court as a witness.
A witness can have a lawyer. If the woman appears in court as a witness, she is not entitled to have her lawyer speak for her in court, but the lawyer may be present in court.
She is entitled to the services of a translator in her own language. If she feels unable to trust the translator for valid reasons, she is entitled to refuse him/her and ask for another translator. This decision depends on the discretion of the authorities.
C. Protection of the Witness
1. Police Protection
The woman may be accompanied and protected by the police during the entire proceedings, and particularly during her statement as witness. It is at the discretion of the police Assistant Chief Constable and the Assistant Director of the Immigration Service (Enforcement) if participation in witness protection schemes are felt to be appropriate. Otherwise, the police decide the level of protection the woman is afforded during the legal proceedings.
In order to obtain the best possible protection, the woman should inform the police of possible threats made by the perpetrators and others.
2. Giving Evidence Anonymously
Where a witness fears intimidation or unwelcome attention from the accused or his friends or associates, the witness’s address need not be read out in court, although the witness must normally be named and identified. Very often witnesses are shown on the witness list as “care of” a police station. In some very exceptional circumstances, for example cases involving national security, or if the woman is also the victim of a sexual offence, a witness may be permitted to remain anonymous, or use an alias (e.g. Ms X).
Where a witness fears intimidation and has asked for his or her address not to be disclosed, care must be taken to ensure that it is not disclosed inadvertently. The police will also need to be aware of the witness’s concerns so that they can offer advice and protection where necessary. The judge will use his/her discretion in deciding whether this situation applies in court.
3. Evidence in a Non-Public Hearing
It is up to the judge to decide when or if to make certain parts of the proceedings private. The judge has statutory power to exclude the public in a criminal trial for an offence contrary to decency or morality involving children, and in a trial for rape or a like offence. In practice, judges routinely exercise this power when the alleged victim comes to give evidence, although not for the rest of the trial. The media, though, must be allowed to remain. They could be excluded but are usually allowed to stay on the understanding that they will not publish anything which would identify the victim. At common law, a judge could also order the court to be cleared in other types of case if s/he consideres it necessary in the interests of justice. It has, however, been suggested that the common law power is limited to recognised categories of case (e.g. sensitive evidence in divorce proceedings, secret manufacturing processes etc), so it may be of limited use to vulnerable witnesses.
4. Giving Evidence by Video
“Video evidence on commission” is provided for in criminal trials. This procedure is rarely used.
In practice, both sides involved in the case will send their lawyers along to ask questions of the witness in the normal way, with the Commissioner (a lawyer who is appointed by the court to take evidence of the witness) assuming the role of the judge.The accused is not normally permitted to be present, but must be able to watch and listen by some means while the witness’s evidence is taken. This could, for example, be achieved by use of a live TV link. The proceedings are recorded on video tape, which can then be re-played at the trial if necessary and as a record of the evidence given. At present, only a few courts are adequately equipped.
In 2005, the Vulnerable Witnesses (Scotland) Act 2004 will be implemented. All witnesses under 16 and adult witnesses deemed vulnerable my be entitled to an increased range of special measures in court and may also be protected from an accused who is conducting his/her defence in person.
5. Evidence without the Presence of the Accused
There is no chance to exclude the accused party from the courtroom.
If there is a risk that the victim may not tell the truth in the presence of the accused because of fear or for other reasons, a screen may be used to conceal the accused from the witness while she is giving evidence in the courtroom. This is formally called giving evidence “behind closed doors”.
Basically, the accused must be able to watch and hear the witness give evidence. This can be achieved by a one-way screen (so that the witness cannot see the accused but the accused can see the witness), or by a TV monitor relaying the image of the witness to the accused. The witness is still questioned by lawyers in the normal way. Screens may be effective in removing immediate physical fear of an accused. They can also prevent the use of the tactic adopted by some lawyers of standing so close to the accused that the witness is forced to look almost directly at him while being questioned.
6. Ban on Soliciting Certain Evidence
In criminal trials for sexual offences, there are restrictions on the use of evidence about the victim’s character or past behaviour in relation to sexual matters which will be tightened in the near future. It is recognised that the use of this sort of evidence can be very distressing to the victim, and that it usually has little relevance to the question of what actually happened at the time of the alleged offence. Leading questions are generally not allowed.
7. Waiver of Giving of Evidence in the Court
If the accused pleads guilty this will relieve the witness / victim of giving evidence.
Admission of Prior Statements applies to all witnesses, but it has special relevance for vulnerable witnesses: In criminal proceedings it is possible to admit in evidence a previous statement made by a witness which has been reliably recorded, on video or in some other way. The witness must still attend court to confirm that the statement is accurate, and be cross-examined on it. Although in a criminal case the witness still has to attend court for cross-examination, using a prior statement could avoid the need for lengthy and distressing questioning by the lawyer representing the side for whom the witness is appearing (known as “examination in chief”). It could allow most of the witness’s evidence to be taken at an early stage, when her memory was still fresh, and reduce the amount of time spent in court during the trial.
D. Compensation for the Victim
1. From the Perpetrator
a) During Criminal Proceedings
During criminal proceedings, the woman may not already make damages and compensation claims from the perpetrator(s).
b) During Civil Proceedings
The woman may make her claims against the perpetrator(s) before a civil court. For these civil proceedings the penal proceedings usually have to be brought to an end, as it is easier to prove that she has a valid claim if the perpetrator has previously been found guilty of a criminal offence.
2. From the State
The woman in question may make compensation claims against the state only if a crime of violence has been committed. The “Criminal Injuries Compensation Scheme” compensates by way of ex gratia payments (payments made because of a moral, but not necessarily legal basis). She can claim compensation even if no one has been found guilty of the crime perpetrated against her. The woman has to claim for state compensation from the “Criminal Injuries Compensation Board”.
E. Trafficked Women
The same rules apply to the woman’s residence permit, living conditions and rights during court proceedings as detailed above.
5. After the Verdict
A. Right to Residence
A woman who has been a victim of trafficking in women can under certain conditions obtain a residence permit (see above).
The woman may be granted a residence permit on humanitarian grounds, or because of the threats of the traffickers. The decision to obtain the residence permit is at the discretion of the police Assistant Chief Constable and the Assistant Director of the Immigration Service (Enforcement).
B. Support in Leaving the Country
1. Travel Costs
If the woman has no means of her own, social services pay travel costs for her homeward journey and for the procuring of documents.
Reimbursement would be at the discretion of the relevant authorities.
2. Help With Setting Up
At the discretion of the relevant authorities involved the woman may receive some help with setting up in her home country. For example, the International Organisation of Migration (IOM) offers a reintegration assistance program for victims of trafficking, where the reintegration assistance is implemented by or in co-operation with local NGOs on the ground. Assistance offered can also include NGOs to meet the victim at the airport and the involvement of NGOs contacts in the specific home area. For initial training / maintenance the woman may receive loans.
Advisory Centres in the UK help clients organise their homeward travel and supply contact information for support in the home country.