Long read: No Right Move? Devolving decision making for criminally exploited children

Joe Caluori, Head of Research and Policy


Monday 8 November 2021


PROJECT: County Lines: Breaking the Cycle’

Crest’s current research project 'County Lines: Breaking the Cycle’ focuses on two questions. Firstly, how does the criminal justice system decide whether a young person identified in county lines is a victim, a willing participant, or a perpetrator? Secondly, what are the implications of these decisions over time for young people who are exploited within county lines?


These questions lead us to consider the role of the National Referral Mechanism (NRM). The NRM is the closest thing we currently have to a diagnostic tool to discern whether or not a young person involved in county lines should be treated as a victim of modern day slavery (including human trafficking and forced labour) and not as a criminal. The problem is that the NRM was never intended for this purpose. Dealing with an increased volume of cases, many of which require complex information from multiple agencies in multiple locations, has stretched the Single Competent Authority (SCA) decision making function to breaking point. Drift and delay have become normalised; the process remains opaque to children, parents and the agencies supporting them and there is no guaranteed level of support for victims after a positive ‘conclusive grounds' decision.


What is the National Referral Mechanism and why is it used for children exploited in county lines?

The NRM was introduced in 2009 to meet the UK’s obligations under the Council of European Convention on Action against Trafficking in Human Beings. The decision making function of the NRM, the SCA, was centralised within the National Crime Agency, latterly within the Home Office. This centralisation reflected the received wisdom at the time that the primary use of the NRM would be for victims born outside the UK; trafficked for sex workers, those working in cannabis factories or other forms of forced labour, domestic service, agriculture or manufacturing.


In 2017/18, Government policy on county lines began to shift, explicitly recognising that children involved in county lines were often victims of exploitation, trafficking and modern day slavery. Social workers, police officers and other ‘first responders’ were encouraged to use the NRM in such cases as part of a ‘safeguarding response’. As a result, referrals increased dramatically. It was estimated there were 10,613 victims of modern slavery in the UK in 2020 [1]; 47% of these were exploited as children. 40% of all child referrals for criminal exploitation were flagged as county lines and the majority of referrals are now for children, and the number of child victims of modern slavery referred to the NRM is continuing to grow.


According to the latest figures released by the Home Office in November 2021 [2]:

  • 50% (1,677) of referrals were for potential victims who claimed exploitation as adults and 41% (1,351) claimed exploitation as children (9% age unknown at referral) from 1 July to 30 September 2021

  • Child potential victims were most often referred for criminal exploitation (47%; 635). See further information on types of exploitation.

  • The Home Office have reported that an increase in the identification of ‘county lines’ cases for those exploited as children has partially driven the increase in referrals within the criminal exploitation category.

In advising first responders to use the NRM for UK born children exploited in county lines, the Government pursued a policy of repurposing and co-opting an existing process to recognise the existence of child criminal exploitation (CCE), rather than legislating to create a new framework for CCE. Given the urgency of the county lines threat, a mend and make-do approach was perhaps understandable as a stop-gap measure. However, subsequent discussions over a national strategic approach to county lines underpinned by legislation have not progressed, despite recent attempts by MPs to amend the Police Crime and Sentencing Bill.


The case for change

The NRM process is creaking under the weight of the new level of demand for these cases. The resulting drift and delay is a cause for significant concern. Dame Sara Thornton, the UK Independent Anti Slavery Commissioner, reported that some individuals have waited in excess of two years for their conclusive grounds decision, leaving them in limbo, unable to move on with their lives [3]. Centrally made decisions, remote from the area where the offence was detected or where the child lives mean that decisions are made with partial information and can exclude intelligence from local agencies.


Crucially, the NRM does not guarantee enhanced protection for young victims – it is not a witness protection programme. The NRM is a civil process which can operate separately from criminal charges faced by a young person, but the civil and criminal processes have been brought together by case law, in particular through section 45 of the Modern Day Slavery Act. As a result, the arresting police force may de-arrest the young person and their original offence may be ‘uncrimed’. At the very least a pending Trial would be delayed until the conclusive ground outcome was reached by the single competent authority. It would be assumed that statutory child protection services would be activated by referral due to obligations within the Children Act, although there is no guarantee this will take place, especially if the child is not ’known to services’. So after a child is identified as a possible victim of trafficking and modern day slavery, there are potentially three separate processes running in parallel; the NRM civil process, the criminal case and child protection from their ‘home’ local authority. There is no unified procedure to bring these processes together in the interests of the child and as we discuss later in this long read, the presumption from case law that the criminal case against a child will be dropped if they receive a positive conclusive grounds decision through the NRM has been challenged by the recent case of R v Brecani.


A report by the National Audit Office on public spending for reducing modern slavery highlighted that the Home Office provides no assurance that victims are not trafficked again, potentially undermining the support given through the NRM (2017) [4]. No data is available on the outcomes of trafficked people referred to the NRM and the UK Government does not plan or enable a needs-based support for trafficked people to rebuild their lives.


The case for localisation

In our report ‘County Lines and Looked After Children’ published last year, Crest echoed calls from the Independent Anti Slavery Commissioner Dame Sara Thornton and ECPAT (Every Child Protected Against Trafficking) UK, the child exploitation experts, that the NRM processes should be localised for children. We recommended that for suspected child victims, the SCA function within the NRM should be transferred from the Home Office to the local authority in which the referral was initially made, or where the child resides. The objective of this recommendation was to force agencies to take responsibility for criminally exploited children, rather than attempting to transfer responsibility elsewhere.


Earlier this year the Home Office announced a pilot in ten areas under the remit of which the SCA function would be effectively devolved to local agencies for children referred by first responders. The pilot areas comprise a mixture of ‘exporters’, densely populated urban areas from which county drug lines are operated, and ‘importers’, areas outside major cities with towns into which the drug lines establish dealing bases.


This is a small pilot with just £50,000 funding per area. Yet amongst high profile police activity during ‘intensification weeks’ and the more generously funded ‘Project ADDER’ pilots aiming to reduce demand for class A drugs in hot spots, this relatively low profile trial has the potential to be a significant development in the response to the criminal exploitation of children in county lines.


Localisation in focus: Camden and Islington

In order to understand the pilot from the perspective of one of the participating local authorities, Crest spoke to Gaby Couchman, a Children’s Services manager at Islington Council, which is participating in the pilot in partnership with neighbouring Camden Council. As a local authority, Islington produced and published one of the first county lines risk profiles, cross referencing Possession with Intent to Supply (PWITS) arrests of Islington children out of borough with gang affiliation and other information gleaned from children’s services. Islington went on to play a key role in designing the Mayor's Office for Policing And Crime (MOPAC) funded ‘Rescue Response’ county lines service and have well developed structures around modern day slavery. Yet even with advanced modern day slavery policies and procedures in place, Islington were frustrated by long delays in the NRM process which increase the vulnerability of children, and hoped this pilot could unblock a better process improving outcomes for children referred into the mechanism.


“We already have, for example, a multi disciplinary modern day slavery board across the Council, which is quite unique in itself, where we're already diving into cases and working closely with the police around responses”

Problems with the pre-existing NRM process for children

Gaby explained some of the challenges the council faced under the pre-existing process. When the local authority is not the first responder, there are often problems with the quality of the referral in terms of the accuracy of the information, including basic details such as the name of the young person’s social worker. In cases where the child is not yet ‘known to services’, it can be difficult for the local authority to have sight of the case at all.

Whilst the ‘reasonable grounds’ decision (i.e. the decision from the Competent Authority that someone is a potential victim of modern slavery) from the Home Office usually came back within the specified 5 days, the ‘conclusive grounds’ decision (the decision from the Competent Authority that on the balance of probabilities someone is definitely a victim of modern slavery) was often subject to extensive delays [5] - and the quality of information was often insufficient to be sure the right judgement had been made. Gaby told us that “it can be underestimated how much information may need to go into the NRM and the importance of the work going on behind it”. This chimes with our wider research on the role of the NRM, which has highlighted examples of officials sending emails from the to the wrong people in police forces and local authorities, often to be ignored in generic inboxes.

Gaby believes that these delays, in part due to decisions made remotely using incomplete information, cause drift and uncertainty in the lives of the victims, increasing vulnerability. “We have children waiting 1, 2 or even 3 years, and there’s a Judge or immigration decision maker at the end of this waiting for an answer... the implications on the welfare of these children and the risks that we carry in between is significant”. In the course of our research into county lines, Crest have heard multiple examples from police forces of children with existing referrals who have subsequently been arrested in county lines elsewhere or have appeared to begin to exploit others perhaps to repay a debt to a gang for lost drugs or money from the original arrest.

“The system was just delaying everything concerning the courts with criminal matters, and it was just backing up. Obviously for a young person to prepare for a trial or prepare for hearing in that context and know that it's been delayed - the impact on the world of that child is quite profound”

The remoteness of the pre-existing NRM process also acted as a barrier to local areas understanding possible patterns in risks facing young people and missed opportunities to intervene earlier in future cases. “We hold a lot of Intel around who these perpetrators are and patterns. And when you've got one young person, you're highly likely to have multiple... the younger the person identified as a victim and supported in that context, it’s a preventative way of ending the entrenchment of that young person potentially into that form of exploitation”.

Another problem was the lack of clarity about who should be making referrals, leading to buck passing between police forces and local councils at either end of a county line: “Ultimately you could understand why a police officer would prefer for a local authority to do it (make the referral), because we have much more knowledge of a young person than even the best investigating officer who's just there in that moment...I think it's failing to an extent by no fault of the first responder, but for lack of joint action, and joint sharing of information for the welfare of the child.”

How does the pilot work?

Under this pilot, the local authorities receive referrals and notify the relevant professionals, requesting information. In Islington this includes a social worker and a social work manager and possibly also the youth offending team and the integrated gangs team. They will also reach out to the police and health services. The local panel meetings, which take place monthly and hear about five cases a month, are able to provide a ‘reasonable grounds’ decision and a positive (but not a negative) ‘conclusive grounds’ decision on the same day if there is sufficient evidence. This marks a dramatic improvement in timeliness. “We have done that for many cases” Gaby tells us, “which is much better for children”. When cases are to be heard at the panel, the local authorities are already contacting professionals preemptively to get a breakdown of information needed beyond what’s in the NRM.

Under the terms of the pilot, the Home Office requires the local decision making panel to include social services, police and health representatives; the ‘three legged stool’ of child safeguarding. For the Islington and Camden pilot the panel membership includes both heads of safeguarding and also targeted youth and youth offending teams. Police representatives include the specialist leads on modern day slavery and exploitation.

Within a local panel, police and local authority representatives may disagree on whether a young person is a victim, a willing participant, or indeed an exploiter. The fact that it’s possible for a young person to be all three of these things, or to be both a victim and an exploiter at the same time - an ‘Alpha victim’, adds a layer of complexity to these judgements.


“There is still an ongoing dialogue around county lines: If a child is still earning money from it, we know they're in a gang, they are consenting. But a child can't consent to exploitation. But within any police force, you're still going to challenge that mentality. Even as professionals sitting on the panel, you hear the argument, and it is compelling to an extent when you hear about the money involved, but then you also know the other context of it, what's going on, and the child can't consent to exploitation and the vulnerability in vulnerability and the history of the child, which the police don't necessarily know.”

Gaby tells us that police representatives are the panel partners who most often challenge decisions in panel meetings, as you would expect in robust decision making, yet police representatives are open-minded on the nature of victimhood and the ways young people may behave, perhaps motivated by self-preservation. If the panel is not in agreement, a case will be deferred pending more information, to aid decision making, but delays never extend beyond the 45 day deadline. The threshold for the NRM is relatively low, but Gaby believes it’s still healthy to have this challenge in order to ensure complex issues are considered properly and panel members do not default to ‘groupthink’.


Decisions are quality assured by the Home Office, who have yet to challenge any of those made within the Islington and Camden pilot. In their first few months of operation, the panel has yet to make a negative conclusive grounds decision, although Gaby says they are prepared to do so if required. However, the panel sees their role beyond the remit of decision making. Gaby tells us that they are very aware that the referrals represent only a small proportion of the real level of exploitation which is present in the community - and they want to increase identification and reporting to tackle hidden exploitation.

Can localisation break the deadlock over using NRM decisions in court?

For suspected victims referred to the NRM, the SCA within the Home Office assesses whether or not there are conclusive grounds that the individual was a victim of modern slavery. When a defendant relies on the statutory defence in court, a recurring issue is whether the conclusive grounds decision by the SCA is admissible as evidence at trial. In the case of DPP v M [2020], the victim in question was a 15 year old male found in possession of a bladed article and class A drugs (cocaine). On appeal from the Youth Court, this case provided clarity that a positive conclusive grounds decision by the SCA could be admissible evidence in a criminal trial to demonstrate the act occurred by exploitation. The defence lawyer instructing M in this case stated that:

“Depriving the court of the SCA decision would have severely reduced the evidence on which to make this decision”.

However, one year later, the admissibility of a positive conclusive grounds decision was revisited with diverging judgment in R v Brecani [2021]. With similar case details to DPP v M [2020], a 17 year old male was charged with conspiracy to supply cocaine. On appeal, the Lord Chief Justice disagreed with the previous decision in DPP v M on the basis that the SCA are NOT experts in human trafficking and modern slavery and reports a conclusive grounds decision does not comply with expert evidence requirements, so, a decision by the SCA is not admissible in a criminal trial. This ruling leads to the question of what evidence is available to consider the victim status of those exploited in county lines drug dealing. In conjunction with a ‘no comment’ interview from a victim, as in the case of M, available evidence may be limited.

In Gaby’s view, the obstacle to using NRM decisions in Court arising from R v Brecani could be resolved through localisation of the SCA function for children. If local panels explicitly involving subject level specialists in cases of children suspected of being victims of exploitation, trafficking and modern day slavery, with greater access to information and data within their decision making, the conclusive grounds outcome could be used as evidence in court to support the view that a young person has been exploited if the new process complies with expert evidence requirements.


In the absence of new legislation addressing child criminal exploitation (CCE) and the roles of those involved in forms of such exploitation such as county lines drugs networks, this legal distinction regarding the expertise of the SCA is a potentially powerful argument for localisation.

Developing the role of local panels

The ‘victim/offender’ overlap, and in particular the role of the ‘Alpha Victim’ remains problematic. One aspect of the localisation pilot which has been useful within this debate, has been greater access to sources of information which the local decision making panel draw on to aid decision making.


“I think we surprised ourselves in the panel on realising what information we actually wanted...we get more regular updates from the social worker and other professionals who know the child. So I think we're able to capture more views. We now have a set format of additional questions we ask. And we're also looking for other perpetrators and other victims in that context and a wider lens than the home office.”

As relationships between agencies develop and deepen at specialist level, new possibilities open up, including conversations about the potential of sharing evidence from ‘phone work’, digital forensic evidence, to aid decision making and identify wider and developing patterns of exploitation. Islington Council and the local police are now cooperating on training, aiming to drive up reporting having acknowledged underreporting amongst first responders.


In fact, bi-directional access to higher quality information at case level (and therefore at aggregate level), benefits law enforcement as well as local authorities. Gaby tells us that in considering cases together through the panel they are able to identify harmful patterns around individuals and gangs but also themes pointing towards emerging modes of exploitation. “We've already seen new trends of behaviour and locations. We're constantly learning from these cases. Just as exploitation is evolving, we have to as well.” The local panel is able to get underneath the skin of new modes of exploitation, bringing together agencies to discuss cases in detail, including external experts such as ECPAT. These insights, drawn from real cases, can be circulated to relevant teams and if necessary escalated within law enforcement. Would localised decision making have hastened the response to the emerging ‘franchise model’ of county lines or sharpened the reactions of agencies during COVID 19 lockdowns by identifying adaptations employed by gangs?

Recommendations

Based on our discussion with Gaby, conversations with our deep drive partners in Lancashire and Suffolk and wider engagement with national level stakeholders earlier in this project, Crest have identified four possible developments for NRM localisation beyond the remit of the pilot:


  • The age cut off seems like a missed opportunity. The pilot remit excludes cases 100 days before their 18th birthday, as those young people may transition to adulthood during the period of consideration. This is a source of frustration for Islington who believe that this is unfair to young people who may be unfairly excluded under this arbitrary cut off point. Given the growing emphasis on ‘transitional safeguarding’ for vulnerable young people ‘aging out’ of children’s services, this remit appears counterproductive. Indeed, why not devolve NRM responsibilities for adults as well as children to these local panels once the structures are in place?


“Those later cases aren't being heard by the panel. And they're perhaps the ones to watch the most, because they're the ones at high risk of incarceration when they turn 18. Turning 18 doesn't mean that you stop being vulnerable, it doesn't mean that you stop being exploited.”

  • Funding must match growing demand. At £50,000 per 12 month pilot, funding is barely sufficient to employ a panel coordinator, let alone rollout training. Whilst it isn’t possible with the available information to reach an estimate of the savings the Home Office will realise through moving to local decision making for children, at the very least, these savings, along with relevant training budgets and capital costs, should be passed on to fund local panels.


  • Local panels should be encouraged to increase identification and referrals. Despite the growing numbers of referrals for UK born children, local areas Crest have spoken to are clear that they are not picking up the true level of demand and are often picking up cases too late to make a decisive intervention. Through training and outreach local panels should be tasked with increasing referrals, aiming for earlier identification to prevent escalation.


“I'd hope in the coming years, if we're starting to pick up these children younger then you're starting to have more effect in safeguarding them prior to the exploitation becoming entrenched. It's sad, because you lose that generation a little bit in those ones that are getting older. That being said, I think you're picking up a lot more Intel and we remain hopeful that more can be done to safeguard victims now”

  • Bring agencies together to design robust packages of support for victims. The NRM is not a magic bullet. It cannot protect against future exploitation, or harms arising out of previous exploitation such as debt bondage without an appropriate package of support. Local panels could identify wider criminogenic needs of victims - from ensuring their physical safety and that of their families, addressing physical and mental health needs to stabilising their housing situation and building a plan around education, employment and training. An intensive casework model, similar to the Pause programme, which works with mothers who have repeatedly had children removed into care, could support this process in the precious weeks after identification, even before a conclusive grounds decision. Panels should also track the progress of victims over time through multi agency data sharing raising red flags ahead of possible ‘re-exploitation’ if engagement drops away or further police contact is recorded.

Conclusion

If the success of the pilot in Camden and Islington is replicated in other pilot areas, it seems likely, if not a racing certainty, that localisation of the single competent authority function for children will be rolled out nationally. However, the participating local areas have not been told by the Home Office what will happen at the end of the 12 months. The Home Office told us they plan to make a decision in the 6-8 months following the end of the pilot, but it may require legislation. For Islington, doubt remains on whether they will lose decision making authority along with the funding at the end of the 12 month pilot period. It would be a disaster to allow the progress made during the pilots to wither on the vine and the Home Office should address this uncertainty, offering bridging funding and delegated authority for successful pilot areas until a national rollout is in train.

“We can’t see this going backwards, not least in terms of the delays. It would be an absolute shame to lose that connection, that exploitation intel, that localised and multi-agency safeguarding response to young people by going back to the single competent authority. We have significant concerns that decision making timescales would not be met, as seen currently in non pilot cases. Timescales as well in that context would be out the window from our perspective.”

The National Referral Mechanism is not working in its current form for child victims of criminal exploitation. It is not used consistently by first responders and when it is used, it tends to be far too late in the process of exploitation, when a child is in police custody or has come to harm. The quality of referrals is variable and there is little training offered to address these issues. The centralised single competent authority function has been adjudged by R v Brecani as lacking the specialist knowledge to make definitive decisions and they do not have the necessary access to information from local agencies. The drifts and delays in conclusive ground outcomes leave local agencies in the dark and the victims open to further exploitation as they wait to find out whether or not they will face a criminal trial. Localising the process for children is common sense and as gangs make greater use of social media to exploit children remotely, enabled by peer networks, CCE will become a greater priority for all local areas, not just urban areas affected by the early models of county lines.




Crest will publish the final report of County Lines: Breaking the Cycle in early 2022.



Footnotes


  1. Home Office (2020), Modern Slavery: National Referral Mechanism and Duty to Notify Statistics UK, End of Year Summary

  2. Home Office (2021), Modern Slavery: National Referral Mechanism and Duty to Notify statistics UK, Quarter 3 2021 – July to September

  3. Independent Anti-Slavery Commissioner, Annual Report 2019-2020

  4. National Audit Office (December) 2017, Reducing Modern Slavery

  5. The conclusive grounds decision cannot be made before 45 days have elapsed after referral. There is no target deadline specifying how long it should take to reach a decision.

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