In the Dock

compensation for victims through the establishment of a fund for victim compensation. Article 17 ofthe Directive says that: States “shall ensure access to existing schemes of compensation to victims ofviolent crimes of intent”. Article 12 provides that the trafficked person shall have access, without delay,to free-of-charge legal counselling, including for the purpose of claiming compensation. In creatingsuch provisions, the Convention and Directive acknowledge the potential restorative, punitive andpreventative effect of compensation. 293Compensation orders remain a contested issue with one solitary compensation order made in thecourse of a trafficking trial: in R v Rebecca Balira, the court awarded the victim £3,000. 294 Whilst therehave been significantly large confiscation orders imposed on traffickers, there has only been onecompensation order granted. The judge has power to order the defendant to pay compensation, onconviction, for any personal injury, loss or damage resulting from that offence or any other offencewhich is taken into consideration by the court in determining sentence, under s.130 of the Powers ofCriminal Courts (Sentencing) Act (PCC(S)A) 2000. However, obtaining compensation through thismethod is difficult as orders can only be considered if the defendants’ assets are realisable i.e. theyhave been seized and confiscated immediately. Furthermore, judges are very unlikely to imposecompensation orders if they impose a custodial sentence on the trafficker. This is evidenced in theminimal sentence imposed on Rebecca Balira.Applications for such orders can be made by the police or prosecutor, 295 but have not been requestedas a matter of course. It appears that police either lacked awareness of such procedures or, as someparticipants feared, that the police did not inform the victim of this right to compensation possibly toavoid the defence counsel arguing that the allegation was made only to obtain compensation, whichwould potentially lead to an unsuccessful prosecution. For prosecutors, compensation orders appearto be a secondary consideration with the primary focus being on securing a conviction. As mosttraffickers are likely to receive some form of custodial sentence, this may explain why compensationorders are not actively pursued. However, as of 3 December 2012, s.63 of the Legal Aid, Sentencingand Punishment of Offenders Act 2012 inserts section 130 (2A) into the PCC(S)A providing: "A courtmust consider making a compensation order in any case where this section empowers it to do so".This new requirement is in addition to s.130 (3) to "give reasons ... if it does not make a compensationorder". Therefore increased attention may be given to compensation for trafficked persons due to thisdevelopment.The UK operates the victim compensation fund through the Criminal Injuries Compensation Authority(CICA). Though this method has seen trafficked persons compensated, this avenue has its owndifficulties as although the trafficked person may have “access” in literal terms to the fund, in practicethey have no “meaningful” access to this compensation scheme. Applying to the scheme isparticularly difficult for a person whose first language is not English. Furthermore, the Governmentdoes not currently offer legal counselling on CICA applications, despite Article 17 obliging Members todo so.CICA is designed to compensate victims of violent crimes. As trafficking is not included as astandalone CICA tariff, many trafficked persons are excluded from applying, as many will not havebeen exposed to physical and quantifiable violence – especially persons trafficked for labour.Successful applications have materialised primarily though the assistance of the pro bono initiativeprovided by the private law firm, Hogan Lovells. The CICA scheme is currently under review, withproposals to remove the first seven bands of physical injury, and the requirement to tie a traffickedperson’s eligibility under the scheme to a positive conclusive grounds NRM decision, despite thedifficulties with this identification system.293See Skrivankova, K. ‘The Right to Compensation for Trafficked Persons: An Overview’, in the Trafficking Handbook, supra note 44.294Balira, supra note 114.295This includes drawing the court's attention to its powers to award compensation and inviting them to make such an order whereappropriate.90