BEN DOUGLAS-JONESbendouglas-jones.com
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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