Modern Slavery - The legal challenges
In this final blog on Modern Slavery, Benjamin discusses how challenges to successful civil claims, on behalf of victims of modern slavery, can be overcome
Posted on 22 May 2015
In the first two blogs in this series, here and here, we discussed the new Modern Slavery Act and the little used mechanism of the civil law for trafficked persons and victims of modern slavery to seek compensation for the wrongs they have suffered.
In this blog we explore some of the reasons why the civil law is not being used to its full potential in this area, and how these issues may be addressed.
The multiplicity of proceedings and different possible causes of action available make it difficult and complicated for practitioners to frame possible claims. Consequently there are very few practitioners providing these services.
Although the array of potential causes of action might at first sight appear daunting, with perseverance and creativity, specialist personal injury and human rights lawyers can bring their experience of applying statutory and common law causes of action to the various scenarios which characterise the phenomenon of modern slavery.
Practical obstacles – who is the defendant, do they have assets?
A characteristic of this area is that there are often difficulties identifying the perpetrator (and potential defendant). Even where the perpetrator is identified there may be difficulties identifying and securing assets against which any successful claims could be enforced.
It is key at the outset to identify viable defendants who will have the means to pay if the claim is successful.
Freezing injunctions can be sought to secure assets so that they are not dissipated by defendants. It is also important to assess whether a defendant may have insurance that could cover the claim.
One area that has not received sufficient attention is that of corporate accountability for modern slavery. It is possible to hold to account corporations responsible for trafficking or forced labour using the law as it currently stands in the UK.
This is potentially an important developing area, not only to hold UK companies to account for abuses in the UK, but also in relation to abuses occurring overseas.
It is clear that modern slavery is present in UK retailers’ supply chains, particularly in the fisheries, agriculture and construction sectors.
In addition to constituting a deterrent as a result of the shame and stigma associated with such allegations and the associated pressure from customers and/or shareholders, claims against corporations often avoid the difficulties of identifying individual defendants with sufficient assets against which to enforce successful judgments.
It is therefore crucial to look beyond the direct perpetrator and explore whether there are other potential defendants involved in the exploitation.
Not an immediate priority?
Very often, survivors of slavery and trafficking, and those providing support and rehabilitation, may not be thinking about the possibility of civil compensation claims at the outset. This is understandable, particularly when individuals have so many competing urgent needs such as for housing and welfare, and when there may be other legal proceedings taking place including immigration claims and criminal trials.
To compound this, trafficked persons are often traumatised and understandably fearful about bringing claims against their exploiters or reluctant to expose themselves to further legal proceedings.
It is crucial that legal representatives take full account of the vulnerabilities of their clients and work cooperatively with immigration and criminal practitioners and other bodies providing support and rehabilitation to victims.
Unfortunately, however, there may be problems caused by failing to act promptly. Claims may become time-barred unless issued within time-limits set by statute.
This can create real problems where trafficked persons may only feel able to bring claims after significant delays due to immigration and/or criminal proceedings, or because of the continuing effects of trauma.
Everything must be done to reduce the potential for retraumatisation and to ensure that the management of compensation claims complements victims’ recovery and rehabilitation.
A further reason why few civil compensation claims are pursued is that victims of trafficking may not know how to fund their claim.
Nevertheless, funding options exist to assist victims of trafficking to pursue a claim without paying upfront and without the risk of paying the defendant’s costs if the claim is unsuccessful.
One of these options is legal aid as there is specific provision for legal aid for civil claims on behalf of victims of trafficking, slavery, servitude or forced or compulsory labour.
While the complexity of the cases in this field can mean the Legal Aid Agency (LAA) initially rejects a claim, perseverance and appealing initial refusals by the LAA are important.
It will also be important for funding options other than legal aid to be explored, about which the solicitor can advise.
Despite the challenges, as we have said in our previous blog here, compensation claims have a key role to play in combating trafficking and forced labour and with the right legal representation these obstacles are not insurmountable.
Compensation claims can also be an effective tool for empowering trafficked persons and victims of slavery, by providing them with the financial means to rebuild their lives.
Should you wish to discuss the issue of human trafficking or modern slavery, feel free to contact one of our specialist team at Leigh Day here.