Undocumented TIP victims will not be prosecuted – Magistrate

…urged to come forward without fear
…as Supreme Court hosts forum on combating human trafficking

In observance of International Day Against Trafficking in Persons (TIP), which is held on July 30 annually, members of the Magistracy on Thursday participated in a radio discussion centred around protective measures in place to address the crime, and the law in relation to such offences.
This year’s theme for World Day Against Trafficking in Persons is “Use and Abuse of Technology”. It focuses on the role of technology as a tool that can both enable and impede human trafficking.

Chief Magistrate Ann McLennan and Magistrate Christel Lambert gave insights on the trial process for such offences, and the international best practices adopted by the justice system to not only enhance the prosecution of this crime, but also to provide protection to victims.
Guyana’s commitment to preventing this form of serious modern-day slavery has seen the enactment of the Combatting Trafficking in Persons Act of 2005, said Magistrate Lambert.
The legislation, she pointed out, criminalises all forms of human trafficking, including forced labour and prostitution, and prescribes adequately stringent prison sentences.
During the informative discourse, she explained what is required in a court of law to establish TIP — the third largest criminal activity in the world, behind guns and drug trafficking. In so doing, she said one must be mindful of the definition of TIP as outlined in the Act.
It defines TIP as the “recruitment, transportation, transfer, harbouring or receipt of a person by means of the threat or use of force or other means of coercion, or by abduction, fraud, deception, abuse of power or of a position of vulnerability, or by the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation.”
Magistrate Lambert explained that in order to establish the offence, the prosecution has to prove one of the following elements: recruitment, transportation or harbouring. Once one of these is proven beyond reasonable doubt, she said, it now has to be proven that the victim was recruited/ transported/haboured by means of force, coercion, or threat.
“…also have to prove exploitation. This is the element that sets Trafficking in Persons apart from any other crime. It entails sexual exploitation, forced labour, …slavery and practices similar to slavery,” she added.
Importantly, she noted that the offence is punishable both in the Magistrate’s Courts and High Courts by sentences ranging from three years to life in prison.
Protection efforts have helped victims of this crime to rebuild their lives.

Victims’ protection
Against this backdrop, Magistrate Lambert assured that victims are protected in such a way that they are not prosecuted while being heard for certain types of offences they may have engaged in while being trafficked, such as immigration-related offences.
“So, we would like persons out there, who are undocumented in our country, to know that they will not be prosecuted, and that they should not be afraid to come forward,” she added.
For her part, Chief Magistrate Ann McLennan spoke about the trial process, noting that the majority of human trafficking cases are disposed of in the Magistrates’ Courts.
Once a matter is filed in the court and the accused is arraigned, she said, “the court’s role is to conduct a victim-centred, trauma-informed, speedy trial which aims at avoiding revictimisation.”
The first consideration after the charge is read is the consideration of bail.
“The court must consider as paramount the security of the victim and all of the witnesses. Of course, one of the main considerations is whether the accused will return to court for the duration of the trial. The security of the victim is particularly important, because of the nature of these offences, which involve syndicates, and a number of persons are involved in the crime. That is the reason for a rigorous bail hearing…” Chief Magistrate McLennan explained.
After this, she said, the court would then schedule a Case Management Conference (CMC) with the defence, prosecution and victim advocate. At these proceedings, the defence is briefed by the court about the conduct of the trial and the nature of the questions that would be allowed.

The CMC, according to her, is “especially” important in cases of sexual exploitation, to ensure that questions related to the victim’s prior sexual conduct are not asked.
She said the victim advocate is required to report to the court directly, or, through the prosecution of the victim’s psychological state, to give evidence, and whether they are ready to do so.
Also, during the case management hearing, the prosecution has to advise the court on the status and readiness of the case file to proceed to trial, and what forms of special measures are needed for the victim and witnesses, said the judicial officer.
The latter, the Chief Magistrate pointed out, include protective screens for the witness box, video-audio link, and an interpreter.
“Once the court is ready to proceed, a trial date is set. The matter is heard in camera, and only concerned parties are allowed in the courtroom. Trials are adjourned from day to day…the victims are allowed to sit and to have an advocate, family member or friend, with them for support throughout the trial…and this person is responsible for advising the court whether or not the victim needs a break, or whether or not we should adjourn to the next day.”

Court controls
She continued, “The court controls cross-examination for the victims, ensuring that questions which are not allowed are not asked; or, if asked, are not answered, and that there are no repetitive questions.”
If the accused person is found guilty, the Chief Magistrate noted, the court allows a victim impact statement to be tendered into evidence before sentencing the accused and making an award for restitution.
With human trafficking still a global problem, the Chief Magistrate, who is also the President of the Guyana Association of Women Judges (GAWJ), highlighted, collaborative efforts are needed to raise awareness and gain support for its prevention.
Guyana remains at Tier One in the US Trafficking in Persons Report 2022. Although this means that the country meets the minimum standards for the elimination of trafficking, the report pointed out that Guyana did not convict any trafficker for the first time in four years.
Further, the report, which was released last week, said Guyana did not formally approve standard operating procedures (SOPs) to identify victims, provide sufficient security for trafficking victims at shelters, provide enough Spanish-language interpreters, identify any victims among the vulnerable Haitian population, or adequately oversee recruitment agencies. (G1)