It means victims of modern slavery who have been convicted for crimes they were compelled to commit by their traffickers are having their compensation claims refused by the government’s Criminal Injuries Compensation Authority (CICA).
The Supreme Court is currently considering a case in which two brothers - Lithuanian nationals who were trafficked to the UK in 2013 and subjected to labour exploitation and abuse - had their compensation claim rejected by CICA because they both had convictions which resulted in a custodial sentence.
In this case, the crimes - burglary and theft - were committed in Lithuania before they were trafficked to the UK.
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But the Anti Trafficking and Labour Exploitation Unit (ATLEU), which intervened in the appeal, argues that the automatic ban - which also affects victims with convictions in the UK - is unlawful as it results in deserving victims being denied compensation.
A decision on the case is expected in the coming months, with the charity Hope for Justice saying it is currently supporting survivors who are waiting for the decision to allow them to progress their own claims.
Jamila Duncan-Bosu, a solicitor at ATLEU, said: “A finding that the bar is unlawful would ensure that victims who have suffered serious physical and mental injury are compensated and can begin to recover and rebuild their lives.
“Without compensation many victims never really break the cycle of exploitation.”
Before the automatic ban was introduced in 2012, decision makers at CICA had discretion as to whether an award should be made or withheld, Ms Duncan-Bosu said, but now their hands are “effectively tied”.
“Even if the victim has suffered serious physical or sexual assault, if there is an unspent conviction no award can be made,” she said.
CICA argues that the risk of trafficking victims being refused compensation is small, because section 45 of the Modern Slavery Act 2015 provides a defence where there is evidence of compulsion, she said.
In theory, this means victims would be able to avoid a conviction or have it quashed - but in reality, experts say there are several reasons why the defence may not be raised.
Ms Duncan-Bosu said it was dependent on the victim’s solicitor having knowledge of modern slavery issues and the victim feeling safe enough to disclose information about their trafficker and circumstances.
She said she was also aware of cases where victims were advised to plead guilty, despite evidence that they were compelled to commit a crime.
Submitting a claim through CICA is one of several avenues for compensation open to victims of trafficking, but for those who are unable to identify their trafficker - as well as those whose traffickers have no assets - it is their only hope.
A report published by ATLEU in November found the scheme presented many barriers for victims of trafficking and was regularly denying them compensation they were entitled to.
Reasons for compensation being refused included not submitting applications within two years of the crime occuring or the survivor not reporting to the police ‘as soon as reasonably practicable’, the charity’s research found.
ATLEU concluded the scheme had “little understanding of the nature of the crimes of trafficking and modern slavery or how these crimes affect traumatised survivors”.
Some trafficking victims were waiting more than four years for CICA to process their applications and award compensation, the report found.
Rebecca Kingi, senior policy manager at Focus on Labour Exploitation (FLEX), said access to compensation for survivors was “an essential part of recovery and stopping the cycle of exploitation”.
“Many victims cannot access compensation from their exploiters directly so rely on the CICA scheme,” she said.
“However, due to significant barriers within the scheme, many victims are denied an award of compensation despite the loss and harm they have suffered."
A Government spokesperson said: “We provide trafficking victims with a wide range of specialist support, which can include accommodation, financial aid and access to healthcare and legal support.
“In 2012, we changed the law to ensure trafficked victims who have also suffered a violent crime could receive payments through the Criminal Injuries Compensation Scheme.”
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