As a result of a settlement of a judicial review claim brought by ATLEU (the Anti Trafficking and Labour Exploitation Unit) on behalf of victims of modern slavery who are in prison (R (ATLEU and QW) v Secretary of State for Justice CO/3171/2021 and CO/3107/2021), the justice secretary has confirmed that he will develop (and use best endeavours to publish) guidance on victims and potential victims of modern slavery for prison staff by 31 October 2022.

During the litigation, ATLEU provided examples of many failings in the system arising from a lack of such guidance. These included survivors who:

This was in addition to evidence of a lack of access to fundamental services such as interpreters, information on rights, support staff and counselling.

The new guidance will require key workers and all other prison staff to be informed of, and assess the needs of, any potential victim of modern slavery in prison. Prison staff will be required to liaise with partner agencies, including the Salvation Army, in relation to safeguarding and bail applications to safe houses. The government has also confirmed that it will consider whether staff in UK prisons should be designated as ‘first responders’, which would enable staff to identify potential victims of modern slavery and refer them into the National Referral Mechanism (NRM), the system for identifying and supporting victims, when indicators are first apparent.

In defending the claim, the justice secretary accepted he was responsible for identifying and supporting victims but contended until the settlement that the general services available in prison were sufficient. The government admitted both that there is no overarching written policy covering the steps that should be taken by prisons when they have victims or potential victims of modern slavery, and that there is no reliable means by which prison staff might know who may be a victim.

During the litigation, it was argued that the lacuna in prison guidance meant there was no practical and effective support for individual potential victims, amounting to a breach of the statutory guidance, article 12 of the Council of Europe Convention on Action Against Trafficking in Human Beings, the ‘systems duty’ under article 4 of the European Convention on Human Rights (ECHR), and ECHR article 14 (unjustifiable discrimination against victims and potential victims of modern slavery detained under criminal justice powers in prisons).

ATLEU is extremely grateful to Freshfields Bruckhaus Deringer LLP for its pro bono representation in this case. Counsel for the claimants were Chris Buttler QC (Matrix Chambers), Marisa Cohen (Doughty Street Chambers), Katy Sheridan (Matrix Chambers) and Paul Skinner (Matrix Chambers). This litigation resulted in the largest-ever pro bono costs order. The Ministry of Justice was ordered to pay £130,000 in respect of Freshfields’ costs, which has been paid to the Access to Justice Foundation.