BEN DOUGLAS-JONESbendouglas-jones.com

• Fraud

• Regulatory

• Consumer

• Human Rights

• Appeals

Chambers of

Miranda Moore QC and

Julian Christopher QC

5 Paper Buildings

Prosecuting Victims of Human

Trafficking: International Law

• International Law:

– Palermo Protocol: the 2000 Protocol to Prevent, Suppress

and Punish Trafficking in Persons, especially Women and

Children

– Council of Europe Convention on Action Against

Trafficking in Human Beings 2005 (CETS No 197)

• In force in UK 1/04/2009

– EU Directive 2011/36/EU on Preventing and Combating

Trafficking in Human Beings and Protecting its Victims

• Came into effect in UK 6/04/2013

Prosecuting Victims of Human

Trafficking: Domestic Law

• Domestic law:

– From … R v O [2008] EWCA Crim 2835 … to …

– LM & Ors [2010] EWCA 2327 [LM] … to …

– R v N and R v Le [2012] EWCA Crim 189 [N and Le] … to …

– THN, T, HVN and L [2013] EWCA Crim 991 [THN] … with …

• R v O [2011] EWCA Crim 2226 [O 2011]

• R v LZ [2012] EWCA Crim 1867 [LZ]

• R v Y [2015] EWCA Crim 123 … in the mix

• The National Referral Mechanism (NRM): inception- 2009.

Palermo Protocol

• Declaring that effective action to prevent and combat

trafficking in persons-

• especially women and children-

• requires a comprehensive international approach in the

countries of origin, transit and destination-

• that includes measures-

– to prevent such trafficking,

– to punish the traffickers and

– to protect the victims of such trafficking, including by

protecting their internationally recognized human rights,

Palermo Protocol

• Defined trafficking.

• Set out that the state parties to the protocol shall

adopt legislative “and other” measures as may be

necessary to criminalise trafficking.

• Introduced the concept of rights of trafficking victims.

• Did not set out in terms non-punishment / non-

prosecution provisions.

Palermo Protocol- Article 3(a)

Anti-Trafficking Convention- Art 4

• “Trafficking in persons” shall mean the recruitment,

transportation, transfer, harbouring or receipt of

persons, by means of the threat or use of force or other

forms of coercion, of abduction, of fraud, of deception,

of the abuse of power or of a position of vulnerability

or of the giving or receiving of payments or benefits to

achieve the consent of a person having control over

another person, for the purpose of exploitation.”

Palermo Protocol- Article 3(a): Part 2

Anti-Trafficking Convention- Art 4

• “Exploitation shall include, at a minimum, the

exploitation of the prostitution of others or other forms

of sexual exploitation, forced labour or services,

slavery or practices similar to slavery, servitude or the

removal of organs”

Palermo Protocol- Article 3(b)

Anti-Trafficking Convention- Art 4(b)

• “The consent of a victim of trafficking in persons to the

intended exploitation set forth in subparagraph (a) of

this article shall be irrelevant where any of the means

set forth in subparagraph (a) have been used”

Palermo Protocol- Article 3(c)

Anti-Trafficking Convention- Art 4(c)

• “The recruitment, transportation, transfer, harbouring

or receipt of a child [under 18] for the purpose of

exploitation shall be considered “trafficking in persons”

even if this does not involve any of the means set forth

in subparagraph (a) of this article”

The Directive – Art 2

• In broadly similar terms.

• Defines vulnerability:

– A position of vulnerability means a situation in which the

person concerned has no real or acceptable alternative

but to submit to the abuse involved.

• Expands exploitation.

• For children- it remains unnecessary to prove the

“means”.

The Anti-Trafficking Convention: Art 26

• Non-punishment provision Each Party shall, in

accordance with the basic principles of its legal system,

provide for the possibility of not imposing penalties on

victims for their involvement in unlawful activities, to

the extent that they have been compelled to do so.

The Anti-Trafficking Directive: Art 8

• Non-prosecution or non-application of penalties to the

victim Member States shall, in accordance with the

basic principles of their legal systems,

• take the necessary measures to ensure that competent

national authorities are entitled not to prosecute or

impose penalties on victims of trafficking in human

beings for their involvement in criminal activities which

they have been compelled to commit as a direct

consequence of being subjected to any of the acts

referred to in Article 2.

O 2008 FACTS

• R v O [2008] EWCA Crim 2835

• O said she had come to England with her boyfriend to

escape from her father, who would kill her if she did

not submit to an arranged marriage in Nigeria to a 63-

year-old man who had five wives already.

• Once here she said she was "given to be a prostitute"

and she ran away to avoid that.

O 2008 LAW

• The Court (Laws LJ) said:

• there were very serious failures by the Court,

Prosecution and Defence to identify / apply Convention

principles which afford protection to suspects who are

possible victims of trafficking, including:

– the presumption that a person is a child where there is

doubt concerning his / her age (Article 10(3)).

• The Court of Appeal found that there had not been a

fair trial and said that prosecutors must be aware of

the protocols enshrined in their Code.

O 2008 LAW

• NOTE:

• “[O 2008] is not authority for the broad proposition

adopted in some of the correspondence which we have

seen, and particularly at some points in reports of the

Poppy Project, where it is asserted that that decision

establishes "that a person thought to be trafficked

should not be prosecuted for crimes committed as a

result of the trafficking situation." That, for the

reasons which we have explained, is too wide a

proposition”; LM § 21.

LM & Ors [2010] EWCA 2327

• In England and Wales the implementation of Article 26

is achieved through three mechanisms:

– First: the common law defences of duress and necessity.

– Second: guidance of prosecutors in considering whether

charges should be brought against those who are or may

have been victims of trafficking.

– Third, duty of the prosecutor not properly discharged:

power to stay the prosecution for "abuse of process.

LM & Ors [2010] continued

• Effect of CPS special guidance to prosecutors: the

three-stage exercise of judgment.

• (1) Is there reason to believe that the person has been

trafficked? If so, then

• (2) If clear evidence of credible common law defence

discontinue case on evidential grounds.

• (3) Even where there is not, but offence may have been

committed as a result of compulsion arising from

trafficking, prosecutors should consider whether to

prosecute in the public interest.

LM & Ors [2010] continued

• Article 26 does not say that no trafficked victim should

be prosecuted, whatever offence has been committed.

• It does not say that no trafficked victim should be

prosecuted when the offence is in some way connected

with or arises out of trafficking.

• It does not provide a defence.

• It says no more, but no less, than that careful

consideration must be given to whether public policy

calls for a prosecution and punishment

• Article 26 does not require a blanket immunity from

prosecution for trafficked victims.

N and Le [2012] EWCA Crim 189

• Lord Judge CJ’s “considerations of general effect” [§ 86]:– The quasi Adaway approach.

• It is possible to envisage circumstances in which fresh evidence

may emerge which may support the argument that the

defendant was convicted after or in consequence of an abuse of

process.

• The only publication likely to be relevant to alleged abuse of

process is the CPS Guidance in force when decisions made.

• We entertain “great reservations” about expert evidence.

• A defendant is provided with one opportunity to give his or her

instructions … There is no special category with Article 26.

• An abuse of process argument advanced long after conviction is

most unlikely to succeed.

R v L & THN

• The international law approach …

– … 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 …

– The criminality, or … culpability, of any victim of

trafficking may be significantly diminished, and in some

cases effectively extinguished, not merely because of

age (always … relevant [with] a child) but because no

realistic alternative was available … but to comply with

the dominant force of another …

R v L & THN … continued

• … the distinct question for decision once it is found

that the defendant is a victim of trafficking is the

extent to which the offences with 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.

R v L & THN … continued

• 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.

O 2011, LZ 2012 and Y 2015

• Non-fault cases.

• No apparent indicia of trafficking.

• If what was known at the time of the appeal had been

known prior to the decision to prosecute or during the

criminal proceedings, and, therefore …

• had the Article guidance been applied to those (new)

facts …

• the Crown would not have prosecuted in the public

interest.

The New CPS Guidance

• Indicators of trafficking

• The prosecutor's obligations

• The three-stage approach to the prosecution decision

• The duty to make proper enquiries & refer through NRM

The Competent Authority decision

• Has the victim been compelled to commit an offence?

• Early guilty plea indicated

• Credible evidence of trafficking post-charge

• Suspects who may be children: Additional requirements