Crimes committed by victims of human trafficking – should they be prosecuted?
22 February 2012
R v N; R v LE  EWCA Crim 189 – read judgment
This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking.
In fact these appeals arose not from the crime of trafficking in human beings, but rather the conviction and sentencing of two Vietnamese defendants who themselves may have been the victims of trafficking and consequent exploitation, who pleaded guilty to offences involving the production of cannabis. They had both worked as gardeners in cannabis factories. One of them, N, was sentenced to an 18-month detention and training order. L was sentenced to 20 months detention in a Young Offender Institution. The UK Border Agency accepted that L had been smuggled or trafficked into the United Kingdom. In the light of this, the Court of Appeal was required to determine whether the convictions of the appellants were safe.
Appeal against conviction dismissed, appeal against sentence allowed
The Court’s reasoning
Trafficking in human beings falls within the scope of the prohibitions on slavery, servitude and forced or compulsory labour contained in Article 4 of the European Convention of Human Rights. The problem is that the perpetrators are not usually within the jurisdiction to be caught by this provision; only their victims. Hence the need for a treaty that deals with the consequences of trafficking for the victims as well as the traffickers.
The UK’s obligation under Article 26 of the Human Trafficking Convention was normally achieved by implementing the protection of victims of trafficking from prosecutions for crimes they may have been compelled to commit consequent to the trafficking. This meant that the Crown Prosecution had the discretion, however strong the evidence , to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who was unable to advance duress as a defence but who fell within the protective ambit of art.26 of the Convention. That responsibility was vested, not in the court, but in the prosecuting authority, who was under a duty in the appropriate circumstances to offer no evidence, or if it had, an application for a stay of the proceedings should be made.
Article 26 does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arising out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims.
In this case the CPS had proceeded with the prosecution, and therefore the issue in the appeals was whether the process of the court was abused by the decision of the prosecuting authority to prosecute. On the facts neither N or L had been compelled, within the meaning of Article 26, to work in the cannabis factories.
Here there was no evidence which suggested that the appellant had been trafficked into this country, or that he fell within the protective ambit of Article 26. Rather the effect of the evidence was that he was a volunteer, “smuggled” into this country to make a better life for himself and that he had a home with a family member to which he could have gone and where he would have been welcome. and the CPS had properly considered the evidence against them before prosecuting them; therefore an abuse of process was not made out. His sentence did fall to be reduced to a four-month detention and training order.
Although the UKBA thought that L might have been trafficked, the CPS produced evidence at his trial that on arrest he had been found with cash, a mobile phone credit for use with that phone. The house where he worked (growing cannabis) was “an ordinary house, far from a make-shift prison”, and he was provided with groceries at weekly intervals. In short, this and other evidence had been inconsistent with having been the victim of trafficking. This appellant was older than N when he became involved in the enterprise, his participation was greater and covered a longer period, and he was not exposed to the same level of exploitation as N. However, given L’s age, and his guilty plea, a 12 month custodial sentence would have been sufficient. The order was varied accordingly.