Examination of Witness

Nationality and Borders Bill – in a Public Bill Committee at 2:01 pm on 21st September 2021.

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Assistant Chief Constable Dave Kirby gave evidence .

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden 2:45 pm, 21st September 2021

We will now hear oral evidence from Dave Kirby, the assistant chief constable of Derbyshire police. Dave is joining us virtually. We have until 3.15 pm. Will the witness please introduce himself for the record?

Assistant Chief Constable Dave Kirby:

Good afternoon. My name is Dave Kirby, assistant chief constable with responsibility for crime and criminal justice in Derbyshire Constabulary.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q Could you give us your opinion of what the legislation will do to help you in your role when you deal with illegal immigrants?

Assistant Chief Constable Dave Kirby:

Specifically in relation to the clause 45 defence?

Assistant Chief Constable Dave Kirby:

If I can start with the background, what we find—forgive me if I tread over ground that you have already been over—is that the defence can be abused either way and there might be ways to alleviate that. We find instances where people who have a genuine claim to be a victim are admitting principal offences—cannabis cultivation or similar—in order to protect the people who exploit them. It tends to have the effect of limiting an investigation, including limiting the examination of telephones or other digital devices that might show us a broader conspiracy, for example. Again, that is because they are still under that control. We see that in an organised way, which I will come to.

Similarly, we see people we believe are genuinely committing offences, such as the organisers of those cannabis growers or people who are in some way managing them, using the defence—some people might use the phrase “Get out of jail free”—to avoid prosecution. In either case, we have seen a high level of organisation, which it is important to point out. I cannot go into the tactical detail in a public forum, but we can see a level of control that goes beyond one organised crime group, for example. Then we see people who are genuinely being exploited perhaps admitting offences and being prosecuted, or being bailed or released under investigation and then simply going round the cycle.

There are two important points around how the legislation currently sits. One is that the defence can be raised at any time, which makes life quite difficult for investigators because they have the original investigation to consider and then they have the secondary, parallel investigation that is required around status. That has to be conducted even if a person has not claimed to be a victim of modern slavery, because that defence could be brought in at any time. I understand that people might initially be hesitant to do that, given that they are being exploited, so it could be problematic to change. However, a second area of interest is that there is no duty for people claiming to be victims to co-operate with the parallel investigation around their status; that is difficult for investigators because there are quite often a few lines of inquiry, with some exceptions.

Photo of Stuart Anderson Stuart Anderson Conservative, Wolverhampton South West

Q We have heard from previous witnesses that the only people who would benefit from the Bill are the people smugglers. Is that your view?

Assistant Chief Constable Dave Kirby:

I would be hesitant to make that statement. There could be benefits for victims, with various revisions. I would not want to make that statement directly.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Mr Kirby, I want to ask about the issue you raised of people raising a defence and there being a delay. The national referral mechanism is meant to make decisions quite speedily, nut it is not doing that. Do you agree that if the NRM were to make decisions more quickly, that would stop this practice?

Assistant Chief Constable Dave Kirby:

I think that would assist hugely. The delay can still be there, because people can choose when to bring the defence, and sometimes that is even at trial. But, yes, more speedy decisions from the civil competent authorities would be helpful, because investigators—we all know that resources are very stretched in every force area—could then focus on the areas they really need to.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q What international co-operation do you have with Europol or countries such as Albania in trying to stop international gangs trafficking people in the first place?

Assistant Chief Constable Dave Kirby:

At a national level, we have had some quite good interaction and support from Albania and other countries, including Lithuania—in fact, my own force in Derbyshire has had a joint investigation with the Lithuanian authorities around forced labour exploitation. So I would say that the support is good; in general, it is conducted in conjunction with Europol or the National Crime Agency. Given the complexities in achieving that level of co-operation, it tends to be for our higher level investigations, where we have mapped organised criminality working at an international level, as opposed to the day in, day out criminality and exploitation that we uncover.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Final question from me. Do you not think it is right that somebody who claims to be a victim of trafficking should be treated as a victim and that if they choose to disclose something later, that should not count against them?

Assistant Chief Constable Dave Kirby:

I think what you are getting at is correct. The reason is that some of these people are under a huge amount of duress, including their families being threatened. Their families remain in Albania and other countries, so they cannot protect them, and violence is often used by these groups. If people are told not to claim that they are a victim and to go through the criminal justice process, and then at some point change their minds for whatever reason, I think that needs to be allowed and not counted against them. The difficulty is, of course, those who would exploit the system and raise a defence at a late stage in order to cause complications for the prosecution and who are in fact criminals, sometimes at a fairly high level. That is where the police and other agencies always need to be cognisant that that defence can be raised and to run those parallel investigations.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

Q Good afternoon. I will start by saying that none of us here can possibly understand how complex the work is that you and your colleagues do. I am trying to understand some of it. I know that recently you said that you have spotted a trend of people who were arrested in drug busts claiming to be victims of slavery when you did not believe that to be the case. I think that, as a result of those concerns, the Home Secretary is overseeing plans to roll out a new public order definition that will allow police forces to refuse NRM protection to those committing serious crimes.

That turns the presumption of innocent until proven guilty on its head. Do you think that that is the most helpful way to go forward and, if so, are there other circumstances in which we should not offer support to people because we do not believe them, before they have had the opportunity to prove otherwise? If you do not think that it is helpful, how would you amend the legislation to be more helpful, while recognising that we do not know whether people are victims of slavery at the point at which they are arrested?

Assistant Chief Constable Dave Kirby:

There are a few areas there. First, the existing legislation does not apply to a lot of crime types in any event—some of the more serious crime types that you mentioned, such as kidnapping and manslaughter, and lots of offences included in the Offences Against the Person Act 1861 and firearms legislation, so some of that is there already. I do not think that it is right to say that policing is turning the presumption of innocent until proven guilty on its head. What I would say is that, where we already have information and intelligence in relation to individuals and their place within a criminal hierarchy, at that point it may be appropriate to turn that presumption on its head.

To illustrate, there is a recent case in Derbyshire where an Albanian gang has been dismantled only in the last couple of weeks. There have been 24 arrests, and I think 12 of those people were Albanians, running cannabis growers and other types of criminality in the region. More than one of those people claimed to be victims, but we had a covert investigation behind us that showed their level of control, their ability to communicate, the resources that they had and various things that clearly went against that claim. Absent that information and intelligence, I do not think that we would say, “We don’t believe this person,” in the first instance. An investigator should, and in all investigations does, go into that situation with an open mind. This person could be a victim or could, in fact, be a criminal. They start at that point, not on one side or the other.

The other part of your question was about what we do to make things easier for investigators to understand the true position. I think that, again, that would be some sort of duty to co-operate, because it is quite difficult if somebody claims to be a victim and then, for example, refuses to provide a phone passcode, and so on. Perhaps a duty there would assist us. I mentioned whether a person should have to declare straightaway, because often there are delays, but I think that a lot of genuine victims would suffer that way.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q Clearly it is critical that our resources are focused on genuine victims of modern slavery. Are you able to share any examples or concerns that you have about individuals or groups taking opportunities to misuse the national referral mechanism by falsely claiming to be victims?

Assistant Chief Constable Dave Kirby:

Absolutely. I cannot give you names right now. That perhaps would not be appropriate, but in various areas of criminality we have seen that, and again it is for various reasons. One reason that I have alluded to already is to hamper prosecutions, as a tactic. Quite often we can get around that as investigators because we have been looking at the various areas that would prove or disprove a person’s status throughout, but sometimes the defence is raised in order to obtain access, we believe, to other services that we would of course want to provide to genuine victims, such as access to housing and potentially some assistance in securing visas and so on.

We do see those things. I can only say that in some cases we have proved that those people are not victims—for example, through covert activity that was already in place because it was a part of larger operations or because of things such as telecoms investigations and so on, sharing that work. There is a lot of technical detail in how it is done, but we have detected people exploiting the system for those two reasons: benefits and to avoid prosecution.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Building on that, what, in your experience, is the impact of sequential claims and referrals, and how will the measures in the Bill help to ensure more effective process?Q

Assistant Chief Constable Dave Kirby:

By “sequential”, do you mean repeated?

Assistant Chief Constable Dave Kirby:

Okay, I am trying to understand where you are going with the question. I am sorry, do you mean if somebody makes a claim and is referred, and then does so again following a criminal justice process? Or have I misunderstood your question?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

It is about issues around repeat claims and those sorts of difficulties that we know exist.Q

Assistant Chief Constable Dave Kirby:

We see victims being referred into the system and then disappearing from it and turning up somewhere else, and then being referred into the system again, and so on. That is an indication, of course, that the control that these criminal gangs have has remained in place and they continue to be controlled, coerced and taken out of that process. Again, in general terms, the speedier the decision that is made in terms of a conclusive grounds decision and the support put in place in a substantive way, the less likely we are to see that because this would be an alternative for people who otherwise are in some sort of a holding pattern, waiting for decisions to be made, perhaps in temporary accommodation and so on. So, for me, the measures that are most effective are those that are going to cement those decisions the quickest and provide real support to those individuals—[Inaudible]—so they can be taken out of that coercive group of organised crime groups.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q I am grateful for that thorough answer. One final question: what assessment have you made of wider criminality resulting from the proceeds of criminal gangs organising dangerous crossings?

Assistant Chief Constable Dave Kirby:

Can you repeat the question? I had an issue with the connection. I apologise.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Q What assessment, if any, have you made of wider criminality resulting from the proceeds of criminal gangs bringing people across the channel?

Assistant Chief Constable Dave Kirby:

The ability of gangs to bring people across the channel is a really important part of how many of those gangs work, particularly when we talk about foreign national offenders and foreign national organised crime. Again, at the risk of being boring talking about west Balkan criminality, I think it is a good way to illustrate that. West Balkan criminality, Albanian criminality, which is really what we are talking about, has taken more of a foothold since around 2017 in the UK, partly because of a real crackdown in Albania around cannabis cultivation. There needs to be a business model to support that. The gang members themselves do not want to spend long hours in uncomfortable and dangerous cannabis grows, for example, with the risk of being caught. Why would they want to do that? Similarly, if the business model is to exploit people for sexual practices then there need to be people to exploit. The ability to bring people into the country across the channel is hugely important for them.

Of course, there are other rackets such as labour exploitation and so on that have been talked about many times. Focusing on those two, they need people who can be exploited. British citizens form part of that, but people from comparatively poor areas who have comparatively few opportunities are much easier to exploit. In fact, many of those people do not initially believe they are victims—they believe that they are entering into a business deal. “You do this for this long, and then we will fly you back, or there will be some sort of benefit”. Sometimes that is the case. I would suggest that the conditions those people are living in are appalling and that the deal is a terrible one, but for some of them that is a better deal than they had where they came from.

Forgive me, that is a bit of a long answer. The point is that without the ability to bring foreign nationals in-country, those very well-organised criminal gangs—in my experience, many of them are far better organised than our own high-level criminality—would struggle to prosper in the way they currently are.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q I have some follow-up questions to that. You mentioned the Balkan states, in particular Albania and Lithuania. Is it generally the Balkan states which are involved in the criminal gangs you have come across?

Assistant Chief Constable Dave Kirby:

At the moment, there is a heightened threat from people from those areas. That is what we are seeing most of in terms of foreign national offenders in Derbyshire and the east midlands, and I am fairly confident that is also the pattern elsewhere. To illustrate, we used to see Vietnamese organised criminals involved in cannabis growing, sex trafficking and other issues, but more often than not we now see Albanians in control, potentially exploiting those Vietnamese people, or, if not, working together. Some alleged groups are so well-organised and disciplined that they are able to effectively out-perform other criminal gangs. That is the threat we are seeing most in terms of foreign national criminality.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q On the issue of how often the slave defence is being used, how much of a problem do you see it as being? Does it happen all the time, not at all, by many people, or a few?

Assistant Chief Constable Dave Kirby:

It is happening very regularly. However, we are uncovering victims very regularly, so in their cases that is a very positive thing. Forgive me, could you repeat the last part of the question?

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

How often is it occurring? How much of a problem do you see it as being?

Assistant Chief Constable Dave Kirby:

I think it is occurring a lot, but whether I would classify it as a problem or not is another issue. When it is being used genuinely for victims in some of the most terrible circumstances imaginable, I would not classify that as a problem. However, the abuse is real; it is actually organised and, in some cases, quite systematic.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q You mentioned that when you find these criminal gangs, you come across many victims as well. How do you differentiate between the two?

Assistant Chief Constable Dave Kirby:

From a domestic point of view, we would look at things like if they have access to communications, do they have their own phone or not? Have they got an evident network of contacts or friends? Have they got control of their own finances? Have they got control of their own documents? Are they able to come and go, or are they locked into a premises, for example? There are not many people within the sex-trafficking area of exploitation who are there voluntarily, of course, so we look at all of those factors.

Really, we are looking at someone’s freedoms; their access to resources, including money, telephones, that kind of thing; and whether they have a normal pattern of life, a normal pattern of life for a criminal, or if they are very much restricted in what they can do. That is one of the ways we can identify people as victims. We would also conduct more detailed work around finances. For example, if benefits are being claimed, who are they being collected by? Which accounts are they being paid into? Are we seeing the same account more than once, which might show an element of organisation and coercion? Those kinds of things.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q Is there not a danger, with some of the clauses, that you will also catch genuine victims of trafficking if they do not disclose something early on?

Assistant Chief Constable Dave Kirby:

Again, I think it is really important that victims are allowed to make that claim at any point. I say that because of the coercion that exists, including threats to family members and so on. If somebody is arrested for whatever offence and know that they are a victim, they dare not claim to be so because their bosses say, “Don’t do that.” They know that if they plead guilty, and indicate that they will do so, the investigation is likely to be stopped short, saving further investigation into the organised crime group. The person is told to toe that line because of the threat to their family. It is difficult to say that they must declare early in those circumstances.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Q But the Bill does not distinguish between the genuine victims and those who are trying to evade the system.

Assistant Chief Constable Dave Kirby:

No, it does not, and again, it is down to the skill, knowledge and understanding of the investigators and other agencies to spot the signs and be alive to the fact that they are not just investigating whatever criminality is reported; they are also investigating the status of those involved.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

If there are no further questions, I thank our witness for his evidence. We will move on to the next panel.