Communicated on 5 March 2018
FIRST SECTION
Application no. 77587/12
V.C.L.
against
the United Kingdom
lodged on 20 November 2012
STATEMENT OF FACTS
The applicant, V.C.L., is a Vietnamese national who was born in 1992 and lives in Middlesex. He is represented before the Court by Ms P. Southwell of Birds Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s conviction and sentencing
On 6 May 2009 the applicant was discovered by police at an address in Cambridge during the execution of a drug warrant. The address was a four‑bedroomed house which had been converted into a sophisticated cannabis factory containing 420 cannabis plants with a street value in excess of GBP 130,000. The applicant was found alone in the property, in possession of a mobile telephone, with credit, and GBP 100 in cash.
Following his discovery, the applicant was interviewed in the company of a legal representative and appropriate adult. He claimed that he was fifteen years old, that he had been smuggled into the United Kingdom by his adoptive father, that upon arrival he had encountered two Vietnamese nationals who took him to the address in Cambridge, and that while he realised cannabis was being grown there, he hadn’t known that it was illegal. However, social services assessed the applicant’s age and concluded that he would turn eighteen in January 2010. A district judge in the Magistrate’s Court subsequently found as a matter of fact that he was at least seventeen years old.
At a preliminary hearing before the Crown Court on 21 May 2009, the case was adjourned for a plea and case management hearing. A few days later Refugee and Migrant Justice, a legal advice and representation charity, informed the applicant’s then representative of concerns that he may have been the victim of human trafficking, and that the point had been “flagged up” by social services.
On 20 August 2009, following a conference with counsel, the applicant pleaded guilty to the production of a Class B drug.
On 4 September 2009 counsel advised the applicant that he could apply for leave to vacate his guilty plea on the ground that he had been trafficked and subjected to forced labour. However, the applicant instructed counsel that he was not in fear of the alleged traffickers. Nevertheless, sentencing was adjourned to await receipt of a report from social services on whether the applicant was deemed to be the victim of trafficking.
On 14 October the Crown Prosecution Service (“the CPS”) reviewed their decision to prosecute and concluded that there was no credible evidence that the applicant had been trafficked. The following day, however, the CPS received a letter from the United Kingdom Border Agency (“UKBA”) indicating that the circumstances of the applicant’s case had been considered by a Competent Authority (see below) which concluded that there were reasonable grounds for believing that he had been trafficked.
On 27 November 2009 UKBA sent a letter to the applicant’s representative. It noted that the trafficking-related criminal investigation was still on-going but found that the applicant’s circumstances raised the following trafficking indicators: he had been found at a cannabis factory highlighting criminality involving adults; he was not enrolled in school; and he was not allowed to leave the property. It further stated that in light of his “credible account” – which had remained consistent in the various meetings he had had with social services – it was considered that he had been trafficked to the United Kingdom.
On 8 December the case was reviewed by the CPS lawyer but the Chief Crown Prosecutor subsequently confirmed that it should be prosecuted.
At a hearing on 19 January 2010 the applicant maintained his plea. It appears that this decision followed a meeting with his solicitors in which he was advised that the finding that he had been trafficked had not been definitively confirmed; that in any case the CPS were not required – and did not intend – to withdraw the prosecution; and that although the decision to prosecute could be challenged in the High Court, it was a lengthy process which had little prospect of success. In the Crown’s submission, the evidence suggested that the applicant was not a trafficked person. Counsel for the Crown went through the facts in detail, noting in particular that he was found in an ordinary house with a mobile phone, credit and money; in the trafficking assessment he had indicated that his family in Vietnam was not under threat; there were no debts owed to anyone in Vietnam; and he had not been abused prior to his arrest. They therefore found “no reason whatever” to revise their initial assessment that the applicant should be prosecuted in the public interest. The applicant was sentenced to twenty months detention in a young offenders’ institution.
2. The applicant’s appeal against conviction and sentence
The applicant sought permission to appeal – out of time – against conviction and sentencing. As it was one of the first cases in which the problem of child trafficking for labour exploitation was raised following the coming into force of the Council of Europe Convention on Action Against Trafficking in Human Beings (“the Trafficking Convention”), permission was nevertheless granted. In granting permission, the court commented
“... it does appear to the court that there are two matters of potential concern. First, there is an appearance that something has gone wrong when one arm of the State (the Home Office) has accepted that a person has been trafficked, but another arm of the State (CPS) has reached the opposite conclusion seemingly without knowledge of the former. It is arguable that as a matter of public law once the government, through the Home Office, has accepted that a person has been trafficked, the CPS ought to proceed on the same basis unless there is some strong reason to do otherwise. Secondly, the applicant appears not to have been given adequate advice about his position, which was an unusual one.”
The appeal was heard together with another raising similar issues. The applicants argued that they should not have been prosecuted in the first place, as their prosecution contravened the United Kingdom’s obligations under Article 26 of the Trafficking Convention (the “non-punishment provision” – see below).
In a judgment handed down on 20 February 2012, the Court of Appeal dismissed the appeal. It found, in particular, that Article 26 was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities; nor could it extend the defence of duress by removing the limitations inherent in it. Summarising the essential principles derived from recent case-law, it noted that the implementation of the United Kingdom’s obligations under the Trafficking Convention was
“normally achieved by the proper exercise of the long established prosecutorial discretion which enables the Crown Prosecution Service, however strong the evidence may be, to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who is unable to advance duress as a defence but who falls within the protective ambit of Article 26. This requires a judgment to be made by the CPS in the individual case in the light of all the available evidence. That responsibility is vested not in the court but in the prosecuting authority. The court may intervene in an individual case if its process is abused by using the ‘ultimate sanction’ of a stay of the proceedings. The burden of showing that the process is being or has been abused on the basis of the improper exercise of the prosecutorial discretion rests on the defendant. ... The fact that it arises for consideration in the context of the proper implementation of the United Kingdom’s Convention obligation does not involve the creation of new principles. Rather, well established principles apply in the specific context of the Article 26 obligation, no more, and no less. Apart from the specific jurisdiction to stay proceedings where the process is abused, the court may also, if it thinks appropriate in the exercise of its sentencing responsibilities implement the Article 26 obligation in the language of the article itself, by dealing with the defendant in a way which does not constitute punishment, by ordering an absolute or a conditional discharge.”
The court identified the principal issue in the appeals to be whether the process of the court was abused by the decision of the prosecuting authority to prosecute. However, having fully considered the facts of the applicant’s case, and in particular the “meticulous care and detailed examination of all the relevant evidence made both by counsel for the Crown and the CPS, and the fair and balanced approach taken by [the judge]”, it concluded that the decision to prosecute had been amply justified. It did, however, allow the applicant’s appeal against sentencing as it found that, given his age and guilty plea, a twelve month custodial sentence would have been sufficient.
An application for leave to appeal to the Supreme Court was refused.
3. Subsequent proceedings
On 13 December 2013 the applicant sought a review of his conviction based on new evidence and new legal arguments. The former constituted fresh medical evidence indicating that the applicant had, on the balance of probabilities, Asperger’s Syndrome together with symptoms of post‑traumatic stress disorder (“PTSD”) and, as a consequence, was likely to have been socially naïve and vulnerable to exploitation. In respect of the latter, the applicant argued that the Prosecution’s failure to conduct a trafficking investigation was in breach of Article 4 of the Convention and rendered the decision to prosecute unlawful. Furthermore, the Prosecution had failed to give any proper consideration to the fact that the applicant was a minor who had been assessed by both UKBA and social services as having been trafficked.
On 14 April 2016 the Criminal Cases Review Commission (“CCRC”) decided to refer the applicant’s case back to the Court of Appeal. In addition to the points raised by him, it considered it arguable that the CPS guidance at the time of the applicant’s prosecution had not been compliant with the Trafficking Convention because it failed to make clear that it was not necessary for a child to have been compelled to commit offences in order to fall within the definition of trafficking.
The applicant’s appeal was heard together with five other appeals in which convicted defendants argued that they should not have been prosecuted as there was a nexus between their crimes and their status as victims of trafficking. Judgment was handed down on 9 February 2017.
Before the Court of Appeal Anti-Slavery International submitted, as interveners, that in order to comply with international conventions the court should develop the law of duress so that persons who could not avail themselves of section 45 of the Modern Slavery Act 2015 (which reflected the “non-punishment provision” in the Trafficking Convention – see below) because it was not in force at the relevant time would be in the same position as those who could rely on it. However, the court rejected that submission, finding that the courts had already developed domestic law to ensure that it was in accordance with the United Kingdom’s international obligations.
In the case of minors, the court reiterated that once it was established that a child was the victim of trafficking for the purposes of exploitation, the relevant question was whether there was a sufficient nexus between the trafficking and the offence; it was not necessary to show there was compulsion to commit the offence (as would be required in the case of an adult). Although the court accepted that this was not clear from the 2009 CPS guidance, both the 2011 and the 2015 guidance were more explicit.
With regard to the relationship between the Competent Authority (see below) and the CPS, the court noted that the latter was not bound by a decision of the former.
In the applicant’s case, the Court of Appeal was satisfied that his criminality or culpability had not been extinguished or significantly reduced to such a level that he should not have been prosecuted in the public interest. It noted, in particular, that the medical report was not enough to undermine either his guilty plea or the decision to prosecute in the public interest; the applicant, at the relevant time, had very nearly been an adult, and he was not a prisoner; his explanation of his presence at the address had been unsatisfactory and far from consistent; on the facts, therefore, it had been open to the Crown to decide that the relevant nexus between the trafficking and the offence had not been established; and finally, there was no evidence to suggest that in this case either the CPS or the court had required evidence of compulsion. It therefore dismissed the applicant’s appeal.
B. Relevant domestic law and practice
1. Modern Slavery Act 2015
The Modern Slavery Act 2015 (“the 2015 Act”), which came into force on 31 July 2015, made comprehensive provision in respect of human trafficking.
Section 45 sets out the conditions which have to be satisfied for a defence to arise where there is a nexus between trafficking and a crime committed:
“45. Defence for slavery or trafficking victims who commit an offence
(1) A person is not guilty of an offence if—
(a) the person is aged 18 or over when the person does the act which constitutes the offence,
(b) the person does that act because the person is compelled to do it,
(c) the compulsion is attributable to slavery or to relevant exploitation, and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
(2) A person may be compelled to do something by another person or by the person’s circumstances.
(3) Compulsion is attributable to slavery or to relevant exploitation only if—
(a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or
(b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
(4) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.
(5) For the purposes of this section—
“relevant characteristics” means age, sex and any physical or mental illness or disability;
“relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.
...”
Prior to the coming into force of the relevant provisions of the 2015 Act, there was no statutory provision in the United Kingdom which transposed into domestic law the State’s obligations under international conventions towards those victims of human trafficking who committed crimes where there was a nexus between the crime and the trafficking. Therefore, in cases where the defence of duress was not likely to be applicable, it was left to the judiciary and to the Crown/CPS to develop a legal regime in which the State’s international obligations were given effect.
2. Relevant guidance
In 2007 the Government published “Safeguarding Children who may have been Trafficked”. The publication provided the following definitions:
“The most common terms used for the illegal movement of people – ‘smuggling’ and ‘trafficking’ – had very different meanings. In human smuggling, immigrants and asylum seekers pay people to help them enter the country illegally, after which there is no longer a relationship. Trafficked victims are coerced or deceived by the person arranging their relocation. On arrival in the country of destination, the trafficked victim is forced into exploitation by the trafficker or the person into whose control they are delivered or sold.”
The publication also drew attention to the (then current) Code for Crown Prosecutors, which provided that children coerced into criminal activity were victims of abuse and should not be criminalised. Even when the defence of duress would not be available, the decision whether it was in the public interest for the child to be prosecuted was directly engaged.
Similarly, the CPS Guidance on Human Trafficking and Smuggling (which was last updated, prior to the applicant’s arrest, on 4 February 2009) emphasised the importance of understanding the difference between persons who are smuggled and those who are trafficked. The Guidance identified a special category of “young defendants” – including those involved in the cultivation of cannabis plants – who may “actually be a victim of trafficking”. It continued:
“Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully ... Any youth who might be a trafficked victim should be afforded the protection of our childcare legislation if there are concerns that they have been working under duress or if their wellbeing has been threatened.”
On 22 April 2009 the Child Exploitation and On Line Protection Centre representing the Association of Chief Police Officers issued its analysis of the threat of child trafficking in the United Kingdom. It indicated, inter alia, that a significant number of minors from Vietnam had entered the United Kingdom undetected. The number was greater than previously understood, and one form of exploitation, among many others, was forced labour in the cultivation of cannabis.
Finally, the United Kingdom Government “Trafficking Toolkit” was published in October 2009. Referring to the definition of trafficking found in Article 4 of the Council of Europe Trafficking Convention, it once again underlined the difference between trafficking and smuggling, both by reference to the nature of the crime and the relationship between the person organising the entry of the migrant and the migrant himself. Specific attention was drawn to the Trafficking Convention and the measures designed to protect victims of trafficking, including “the possibility of not imposing penalties on victims for their involvement in unlawful activities, if they were compelled to do so by their situation”.
3. National Referral Mechanism
On 1 April 2009, to coincide with the coming into force of the Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (see below) the Government created the National Referral Mechanism with Competent Authorities being responsible for making conclusive decisions on whether a person has been trafficked for the purpose of exploitation. The Competent Authorities are a unit of the National Crime Agency within the Home Office Immigration and Visa Section.
4. R. v. M(L) [2010] EWCA Crim 2327
In this case the Court of Appeal considered three distinct appeals concerned with alleged failures to implement Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (being the “non-punishment provision” – see below). The court made the following comments:
“The United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual’s cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster’s Licensing Authority and a number of other bodies.
These agencies are charged with the identification of persons who have ‘reasonable grounds for being treated as a victim of trafficking’. That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually is a victim of trafficking, but rather that there are reasonable grounds to believe that they may be.
The application of Article 26
In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity (‘duress of circumstances’). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed ‘abuse of process’.
The defences of duress and/or necessity (‘duress of circumstances’) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see R v Z [2005] 2 AC 467. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity...
The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences.
...
The effect of that [guidance] is to require of prosecutors a three-stage exercise of judgment. The first is: (1) is there a reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not.
The first step is not limited to reacting to any assertion of trafficking. Article 10 makes clear that States must take active steps to consider the question whenever it is a realistic possibility. For obvious reasons, one of the consequences of trafficking, especially far from home, may be to inhibit the victim from complaining. The vital additional third obligation is consistent with the requirements of Article 26, which, it is clear, uses the word ‘compelled’ in a general sense appropriate to an international instrument, and is not limited to circumstances in which the English common law defences would be established.
...
It is necessary to focus upon what Article 26 does and does not say. It 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 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.
It follows that the application of Article 26 is fact-sensitive in every case. We attempt no exhaustive analysis of the factual scenarios which may arise in future. Some general propositions can perhaps be ventured.
i) If there is evidence on which a common law defence of duress or necessity is likely to succeed, the case will no doubt not be proceeded with on ordinary evidential grounds independent of the convention, but additionally there are likely to be public policy grounds under the convention leading to the same conclusion.
ii) But cases in which it is not in the public interest to prosecute are not limited to these: see above.
iii) It may be reasonable to prosecute if the defendant’s assertion that she was trafficked meets the reasonable grounds test, but has been properly considered and rejected by the Crown for good evidential reason. The fact that a person passes the threshold test as a person of whom there are reasonable grounds to believe she has been trafficked is not conclusive that she has. Conversely, it may well be that in other cases that the real possibility of trafficking and a nexus of compulsion (in the broad sense) means that public policy points against prosecution.
iv) There is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside Article 26.
v) A more difficult judgment is involved if the victim has been a trafficked victim and retains some nexus with the trafficking, but has committed an offence which arguably calls, in the public interest, for prosecution in court. Some of these may be cases of a cycle of abuse. It is well known that one tool of those in charge of trafficking operations is to turn those who were trafficked and exploited in the past into assistants in the exploitation of others. Such a cycle of abuse is not uncommon in this field, as in other fields, for example that of abuse of children. In such a case, 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. That will depend on all the circumstances of the case, and normally no doubt particularly on the gravity of the offence alleged, the degree of continuing compulsion, and the alternatives reasonably available to the defendant.”
5. R. v. L(C) [2013] EWCA Crim 991
In this appeal, brought by three children and one adult who were trafficked by criminals and themselves prosecuted and convicted, the Court of Appeal indicated that
“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. 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.”
C. Relevant international law and practice
1. United Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”)
Article 3 of the Palermo Protocol, ratified by the United Kingdom on 9 February 2006, provides that:
“For the purposes of this Protocol:
(a) ’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. 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;
(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;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child 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;
(d) ’Child’ shall mean any person under eighteen years of age.”
2. Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (“the Trafficking Convention”)
In addition to adopting the same definition of trafficking in human beings as the Palermo Protocol (see Article 4), Article 10 of the Trafficking Convention, which came into force in respect of the United Kingdom on 1 April 2009, provided:
“1 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
3 When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age.
4 As soon as an unaccompanied child is identified as a victim, each Party shall:
a provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child;
b take the necessary steps to establish his/her identity and nationality;
c make every effort to locate his/her family when this is in the best interests of the child.”
Article 26 contained the following “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.”
3. Directive 2011/36 on preventing and combatting trafficking in human beings
The 2011 Directive, which has had direct effect since 6 April 2013, provides as relevant:
“Recital (14) Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.
...
Article 2
Offences concerning trafficking in human beings
1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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.
2. 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.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.
...
Article 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.
Article 9
Investigation and prosecution
1. Member States shall ensure that investigation into or prosecution of offences referred to in Articles 2 and 3 is not dependent on reporting or accusation by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement.
2. Member States shall take the necessary measures to enable, where the nature of the act calls for it, the prosecution of an offence referred to in Articles 2 and 3 for a sufficient period of time after the victim has reached the age of majority.
3. Member States shall take the necessary measures to ensure that persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3 are trained accordingly.
4. Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3.”
COMPLAINTS
The applicant complains under Article 4 of the Convention that the Crown Prosecution Service and the police breached their positive obligation to investigate the claim that he had been trafficked. He further claims that as a result of this failure he was denied a fair trial within the meaning of Article 6 of the Convention.
QUESTIONS TO THE PARTIES
1. Given that the applicant was recognised as a victim of trafficking by the United Kingdom Border Agency, can he claim to be a victim of a violation of Article 4 of the Convention within the meaning of Article 34?
2. In view of the fact that there is a “trafficking-related criminal investigation ... still on-going”, is the present application premature?
3. To what extent can – and should – the positive obligations under Article 4 of the Convention extend to the criminal prosecution of victims of trafficking, where there is a nexus between the offence and the trafficking?
4. Having regard to all the circumstances of this case, has there been a violation of Article 4 of the Convention?
5. Does a sentencing hearing following a guilty plea constitute a “determination of a criminal charge” within the meaning of Article 6 § 1 of the Convention?
6. If so, in view of the fact that the applicant pleaded guilty to the production of a Class B drug, can he be said to have waived his right to a fair trial under Article 6 of the Convention?
7. If not, did he have a fair hearing within the meaning of Article 6 § 1 of the Convention?
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