The definition of human trafficking in Irish criminal law is not fit for purpose and must be reviewed in order to protect the rights of victims of slavery and ensure they receive adequate compensation, a human rights barrister has said.

Speaking on Friday at a seminar on forced labour, Colin Smith described his “anger and shame” at the system for not being able to provide an effective remedy for trafficking victims.

The lack of convictions in Ireland in relation to human trafficking is not because of “inadequate or incompetent” investigations but because employers are not prosecutable under the current definition of trafficking, he argued.

“Other countries can achieve trafficking prosecutions and convictions but, notwithstanding over 10 years of experience, we simply can’t do it,” he said. “And if you can’t get the prosecutions, you can’t meaningfully demonstrate that this is actually happening.”

No convictions have been recorded under the 2008 Human Trafficking Act since it was amended in 2013.

Mr Smith also called for the introduction of a range of lesser offences relating to exploitation. “It can’t just be a trafficking life sentence or a slap on the wrist at the Workplace Relations Commission. If you want to extract guilty pleas you have to have a spectrum of offences.”

Enforcement issues

He said the four methods of compensation available to victims of trafficking were “profoundly flawed” and noted that criminal injuries compensation did not provide for “the pain and suffering” of victims, while bringing civil proceedings against an employer would be extremely difficult for a victim.

Isabel Toolan, of the Migrant Rights Centre of Ireland (MRCI), said a lack of enforcement in ensuring payments are made by employers means many victims who win their cases struggle to secure compensation.

Despite €1.1 million being awarded for breaches of employment law cases supported by the MRCI, only a quarter of these funds had been recovered, she said.

Ms Toolan said many employers use the “phoenix syndrome” to avoid payment whereby they change the structure and name of their organisation to avoid accountability. A person can seek an order for payment from a court, which if ignored can result in imprisonment or a fine, but the use of this is very rare, she added.

“These are people who have gone through incredible trauma who may not speak the language. There’s so many barriers.”

Ireland downgraded

This week the US state department highlighted serious and widespread issues with the identification and treatment of victims of trafficking in Ireland in its annual report into human trafficking. Ireland was downgraded to a Tier 2 country last year for not fully meeting the minimum standards for the elimination of trafficking and remained in that position for 2019.

This “national humiliation” is being caused by the many senior officials across the public administration who don’t believe people are being trafficked, said Mr Smith. “They believe victims are complicit in their own exploitation and ultimately they deserve what happens to them. This is the same attitude that marked the State’s approach to mother-and-baby homes, to the industrial schools and Magdalene Laundries.

“Until that attitude changes, the traffickers are going to go unpunished, victims will go unprotected and our national annual humiliation is going to continue.”