Human Trafficking and Exploitation (Scotland) Act 2015: guide

Part Four - Targeting offenders and protecting the public - restricting the activities of perpetrators and suspected perpetrators

40. This part of the Act provides the courts with power to issue two new types of preventative orders to assist both in preventing and disrupting trafficking and protecting the public:

a) trafficking and exploitation prevention order ( TEPO) (sections 17 - 25) and

b) trafficking and exploitation risk order ( TERO) (sections 26 - 31).

41. Section 34 of the Act also contains a glossary of terms used in this part.

TEPO

42. Where an individual has been convicted of a trafficking or exploitation offence or an offence with a statutory trafficking aggravator, a TEPO may be imposed by a court where there is a risk that that individual may commit a further human trafficking offence, and it is necessary to make the order to protect people from the physical or psychological harm which might occur if such an offence were committed. A TEPO, despite being able to be imposed in some cases immediately after conviction, is a civil law (not criminal law) order.

43. A list of "trafficking and exploitation offences" is set out in section 16 of the Act. Scottish Ministers can make a further law, (regulations), which can add or remove the offences listed there (these regulations will be scrutinised by Parliament). The list is much wider than just the two new offences set out in the Act, and it includes trafficking offences as they are set out in other UK jurisdictions and convictions for attempting to commit such offences.

When can a TEPO be imposed?

44. A TEPO can be imposed at the time of sentencing by the Scottish court which is sentencing in respect of a criminal case which has resulted in a conviction for a trafficking and exploitation offence. It can also be imposed by a Scottish civil court after any criminal court process has concluded, on the application of the Chief Constable of Police Scotland. The power of the Chief Constable to apply for such an order means that a TEPO may be imposed with regard to a conviction for a trafficking or exploitation offence which occurred before Part 4 of the Act came into force, or against an offender whose behaviour, at some time after conviction, causes enough concern to meet the test both of risk that the individual may commit a further human trafficking offence and of necessity to make the order to protect people.

45. The Chief Constable can also apply for a TEPO where the person has been convicted of an offence under the law of a country outwith the United Kingdom and where the conduct which constituted that offence would have constituted a relevant trafficking or exploitation offence had it been committed in Scotland.

What does a TEPO do?

46. A TEPO can prevent a person engaging in particular activities described in the order. This might include the employment of staff, making travel arrangements for other people, travelling overseas, having contact with children, etc. It can also impose requirements to do certain things, such as the requirement to report to a police station at a prescribed time and place; require the individual to inform the police of a change of address, vehicle usage, mobile telephone number(s) etc. An interim TEPO can also be imposed by the court whilst it is considering the application for a full TEPO. TEPOs and the prohibitions and requirements in them have to apply for a clear fixed period. The period must be at least 5 years, unless it relates to prohibiting foreign travel, in which case it cannot be for more than 5 years.

TEPO - general administration

47. Where a court imposes a TEPO in addition to a sentence after conviction then the individual who is subject to it, or the prosecutor, can apply to the court for that TEPO to be varied, renewed or discharged. The individual can also appeal against it being made and any variation of it and that appeal will be dealt with by the criminal courts.

48. Where the court imposes a TEPO after an application by the Chief Constable then the individual who is subject to it, or the Chief Constable, can apply to the court for that TEPO to be varied, renewed or discharged. The individual can also appeal against it being made and both the individual and the Chief Constable can appeal against any variation of it; such appeals are dealt with by the civil courts.

TERO

49. A Scottish court can impose a TERO on a person who has not been convicted of a trafficking or exploitation offence, but where it is considered that the person has acted in such a way which means:

a) that there is a risk that the person might commit such an offence; and,

b) some prohibition or requirement is necessary to protect people from the physical and psychological harm which would be likely to occur as a result of that offence being committed.

When can a TERO be imposed?

50. A TERO can only be imposed on an application to the court by the Chief Constable of Police Scotland.

What does a TERO do?

51. A TERO can prevent a person engaging in particular activities described in the order. This might include the employment of staff, making travel arrangements for other people, travelling overseas, having contact with children, etc. It can also impose requirements to do certain things such as the requirement to report to a police station at a prescribed time and place; require the individual to inform the police of a change of address, vehicle usage, mobile telephone number(s) etc. An interim TERO can also be imposed by the court whilst it is considering the application for a full TERO. TEROs and the prohibitions and requirements in them have to apply for a clear fixed period. The period must be at least 2 years (note the difference from a TEPO which requires 5 years), unless it relates to prohibiting foreign travel, in which case it cannot be for more than 5 years.

TERO - general administration

52. Where a court imposes a TERO then the individual who is subject to it or the Chief Constable can apply to the court for that TERO to be varied, renewed or discharged. The individual can also appeal against it being made and both the individual and the Chief Constable can appeal against any variation of it; such appeals are dealt with by the civil courts.

Criminal offences

53. It is a criminal offence under section 32 of the Act to do something prohibited by a TEPO or TERO, or to fail to do something required by them. Other parts of the UK have introduced court orders which are broadly equivalent to Scottish TEPOs and TEROs. Scottish Ministers have the power to make a further law (regulations) under section 33, which can have the effect of making it a criminal offence in Scotland to do something prohibited by these other UK orders or to fail to do something required by them. These regulations require the approval of Parliament.