When, and when not, to prosecute victims of human trafficking

1 November 2010 by Matthew Hill

R v M(L) and others [2010] EWCA Crim 2327; [2010] WLR(D) 266 – Read judgment

The Court of Appeal (Criminal Division) has provided further guidance to prosecutors on whether or not they should bring charges against victims of human trafficking who go on to commit crimes. In the same judgment, the Court considered the extent of the obligation on the police to refer such victims to specialist agencies.

The state has a number of duties to victims of human trafficking deriving from the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No 197).

Article 10 requires member states to provide means to identify and assist victims, and to this end a number of agencies (“the referral agencies”) have been established in the UK to identify and assist those who have “reasonable grounds for being treated as a victim of trafficking”.  Article 26 requires that member states’ legal systems allow for the possibility of not imposing penalties on trafficking victims for their involvement in unlawful activities where they have has been compelled to become so involved.

In the UK this requirement is addressed in a number of ways: the defences of duress and necessity; the discretion of the CPS (to be exercised in accordance with its “Human Trafficking and Smuggling” guidance) not to bring charges; and the powers of a court to stay proceedings as an abuse of process if the prosecuting authority has not properly exercised its judgment on these matters. Hughes LJ, giving the judgment of the court in the present case, described Article 26 as saying: “no more, but no less, than that careful consideration had to be given to whether public policy called for prosecution and punishment when the defendant was a trafficked victim and the crime had been committed when he was in some manner compelled to commit it.”

Hughes LJ addressed two matters of principle when addressing the three co-joined appeals before the court. The first concerned the factors that Article 26 might require a prosecutor to take into account when considering whether to pursue a case against a victim of trafficking. He emphasised that all cases were fact-sensitive, and limited his guidance to the following general points:

• •  If there was evidence that a common law defence of duress or necessity was “likely to succeed” it was also likely that there would be public policy grounds under Article 26 not to prosecute.
  • It might be reasonable to bring proceedings against a defendant who had established “reasonable grounds” for being treated as a victim of trafficking if, having properly considered the matter, the Crown rejected for evidential reasons the claim that the person had been trafficked.
  • There would normally be no reason not to prosecute if the offence appeared to have been committed “outwith any reasonable nexus of compulsion occasioned by the trafficking”. Such a case would fall outside of the protection of Article 26.
  • The most difficult cases would be those in which the nexus with the trafficking was retained, and where there was an arguable public interest in prosecuting the criminal act. “Cycle of abuse” crimes were particularly problematic in this respect. In such cases, “the question which must be actively confronted by the prosecutor is whether or not the offence committed is serious enough, despite any nexus with trafficking, to call for prosecution”. The circumstances of the case would be all important, and the prosecutor should look at the gravity of the offence, the degree of continuing compulsion, and the alternatives reasonable available to the defendant.
  • The power of the court to stay a prosecution for abuse of process was a safety net to ensure compliance with Article 26. The role of the court in such circumstances was one of review. Prosecutions could be stayed (i) if the exercise of judgment had not been properly carried out and might have resulted in a decision not to prosecute, and (ii) if the decision to prosecute was one at which no reasonable prosecutor could arrive. Hughes LJ commented that such stays ought to be very limited once the provisions of the Convention were generally known.

Turning to the three cases that formed the appeal, the Court refused leave in two. In the first, it held that the defendant’s assertion that she was a trafficked person was not credible. In the second, leave was refused because the offences were committed some months after the offender had been free of exploitation and therefore there was no necessary nexus of compulsion. However, the defendant’s sentence was cut on the basis that she might have been trafficked in the past.

The third case was more complex. The Crown did not dispute that the three defendants, M, G and B, had been victims of trafficking, but alleged that they had become voluntary abusers of other such victims, whom they forced into prostitution through threats, violence and sexual abuse. The CPS considered its obligations under Article 26 and decided to prosecute, a decision that the Hughes LJ found to have been justified at the time that it was taken. Shortly before the trial, the Crown accepted guilty pleas from the three defendants on the basis that they had not used threats, violence and sexual abuse, that they had themselves been victims of trafficking, and that they had committed the offences under pressure (albeit falling short of the defence of duress). The prosecutions proceeded, and the three were convicted. The Court of Appeal allowed their appeal on the basis that the acceptance of the guilty pleas changed the factual basis of the case. At that stage the CPS ignored its duty under Article 26 to consider whether, in the new circumstances, the prosecutions should have gone ahead. If it had exercised its judgment properly, the only conclusion open to it would have been that it was not in the public interest to prosecute, and hence the case should have been resolved either by the prosecution offering no evidence, or by the trial judge staying proceedings on the grounds that a decision to continue was one which no reasonable prosecutor could have made.

The second point of principle considered by the Court concerned the obligations on the police under Article 10 of the Trafficking Convention. It was argued that the police had a duty not only to advise the defendants’ solicitors of the availability of the referral agencies, but also, where necessary, themselves to refer the defendants to those agencies. The failure to meet this duty, it was submitted, meant that the prosecution should have been stayed.

The Court rejected both limbs of this argument. It held, first, that where a defendant had solicitors acting for him or her, and unless there was something unusual about the case, the obligations of the police were met by reminding the solicitors of the availability of the identification agencies. They were not required to refer such persons to those agencies against the persons’ wishes, informed by legal advice. However, the Court noted that the situation of an unrepresented defendant might well be different. In respect of the second limb, the Court found that a breach of Article 10, while deplorable, did not, by itself, render a prosecution unlawful, or amenable to a stay; only a failure in respect of Article 26 would do so.

Related posts:

• Previous posts on criminal law
• Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence
• Fruit of the poisoned tree: evidence obtained under torture in the UK