Human trafficking Bill should have defence as a "failsafe", Faculty argues
Victims of human trafficking could be less well protected in Scotland than elsewhere in the UK if changes are not made to planned legislation, the Faculty has suggested to MSPs.
The Human Trafficking and Exploitation (Scotland) Bill relies on guidelines by the Lord Advocate to save victims from being prosecuted for offences committed due to their exploitation.
However, the Dean of Faculty, James Wolffe, QC, giving evidence to the Scottish Parliament's Justice Committee, argued for a statutory defence to be added to the Bill as a "failsafe".
Mr Wolffe said a Bill in England and Wales relating to human trafficking and an Act in Northern Ireland both contained a statutory defence. Care had been taken, he added, not to apply it to every crime because it had been recognised that applying the defence "across the board" would be going too far.
"The concern is that without a statutory defence, protection for victims in this jurisdiction may be less than in other parts of the UK," he stated.
Mr Wolffe stressed that he had great faith in the integrity of the Lord Advocate and his staff in the way they went about their work.
"But no-one is infallible…the defence would be there as a failsafe for the accused," he said.
The Lord Advocate, Frank Mulholland, QC, said he believed the issuing of instructions to prosecutors and police allowed a much more flexible approach, and was better than a rigid statutory defence.
"A statutory defence places the onus on the accused to raise that defence…there has to be an evidential basis for it before it can be considered by the jury," said Mr Mulholland.
The evidence session, with the panel of witnesses including Mr Wolffe and James Mulgrew of the Law Society of Scotland at 54m 45s, can be seen at http://www.scottishparliament.tv/category.aspx?sort=date&vid=0_v3nygoql
The Faculty's full written evidence to the Committee is at http://www.advocates.org.uk/downloads/news/responses/20150227_human.pdf