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Convictions of trafficking victims quashed, new guidance given

Finally, there has been a breakthrough in cases where victims of trafficking find themselves prosecuted and convicted here in the UK for engaging in the very activity into which the victim was forced. It may seem strange that it is the victims of trafficking that have ended up with criminal convictions rather than the traffickers, but that is precisely the situation so far contrived by mindless prosecutors, poorly informed defence lawyers and the courts.

In a case in which the victims are referred to only by their initials, L, HVN, THN and T v R [2013] EWCA Crim 991, with the Children’s Commissioner for England and the Equality and Human Rights Commission intervening, the Court of Appeal has quashed the convictions of four such trafficking victims. This has been a particular problem for young Vietnamese trafficked to work in cannabis factories and then get prosecuted for drug production. Three of the four cases were examples of this.

THN had pleaded guilty to to producing a Class B controlled drug, cannabis. He had been 17 at the time of arrest and it was clear he had been trafficked to the UK to work in a cannabis factory. His lawyers initially pursued this defence but seem to have dropped it, and he pleaded guilty. He was later in custody referred by chance to the UK Border Agency and accepted as a victim of trafficking. Tragically, by the time of the hearing in the Court of Appeal he had disappeared and it was thought he had been re-trafficked – forced back into the arms of the traffickers because we prosecuted rather than protected him.

T was eventually accepted by social services to have been a child at the time of arrest, also for cannabis cultivation. He has originally been ‘looked after’ by Kent County Council, but was one of the many such children in care that Kent manages to lose every year. The issue of whether T had been trafficked was basically ignored at his trial but the UK Border Agency eventually accepted that he was a victim of trafficking. You can see an interview with him by Channel 4 News below. The extent to which he was let down by his own lawyers and the criminal justice system is just staggering.

HVN was first brought to the attention of police when spotted by members of the public being moved by men into a house with his hands bound. He was accepted to be 16.  He was prosecuted, he pleaded guilty and despite the prosecution suggesting that the matter was not serious a judge disagreed and transferred the case to the Crown court. HVN was accepted to be a victim of trafficking by the UK Border Agency but neither the prosecution nor the defence were informed. HVN pleaded guilty.

L was in her mid thirties and the UK Border Agency eventually accepted that she had been trafficked to the UK for sexual exploitation. However, throughout her prosecution for possession of a false identity document, a charge to which she pleaded guilty, no-one thought her account of being trafficked was relevant. It was only when she was in custody that she was referred by a support group (not her lawyers) to the Poppy Project and then to the UK Border Agency.

The Court gives guidance for future treatment of potential trafficking victims. Essentially, the Court finds that where a person has been a victim of trafficking that is a consideration which will diminish or even extinguish culpability. A victim of trafficking may have been compelled to commit crimes and if such a person is prosecuted then the court should find such a prosecution an abuse of process.

The following paragraphs of Lord Judge’s judgment for the Court are particularly relevant:

“… It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking. What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.” (para 13)

“ … [What] is required in the context of the prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences. These arrangements should follow the “basic principles” of our legal system. In this jurisdiction that protection is provided by the exercise by the “abuse of process” jurisdiction.” (para 14)

“… In any case, where it is necessary to do so, whether issues of trafficking or other questions arise, the court reviews the decision to prosecute through the exercise of the jurisdiction to stay. The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party. The role of the court replicates its role in relation to agents provocateurs. It stands between the prosecution and the victim of trafficking where the crimes are committed as an aspect of the victim’s exploitation.” (para 16)

“…. In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless.” (para 17)

“As we have already explained the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences of which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” (para 33)

Fantastic result and well done to a large contingent from Garden Court, Henry Blaxland QC, Stephen Knafler QC, Nadine Finch, Michelle Brewer and Shu Shin Luh, and to Parosha Chandran at 1 Pump Court.

Anyone looking for legal resources or advice on trafficking law and policy should head over to the ATLeP website.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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