Human trafficking is internationally recognised as threatening human rights and the fundamental values of democratic societies. States have taken action to prevent, suppress and punish trafficking and to provide support to victims of what is the third largest illicit money-making venture in the world. But what happens when the victims of trafficking commit a crime themselves? Should they be prosecuted? What factors are relevant in this assessment? And which arm of the State should the assessment of whether someone is a victim of trafficking be entrusted to? This is the first time the European Court of Human Rights has tackled these questions. The Court found that the UK had breached its obligations under articles 4 and 6 of the European Convention on Human Rights by prosecuting two Vietnamese children who were potential victims of trafficking.
It was only at the turn of the century that the first comprehensive international instrument on human trafficking was adopted. The Palermo Protocol established a number of obligations to prevent trafficking, punish traffickers and protect victims of trafficking. It defines trafficking as:
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
There are therefore three elements to trafficking: (i) action (recruitment, transportation, transfer, harbouring or receipt); (ii) means (threat or use of force or other forms of coercion etc.); and (iii) purpose (exploitation). When trafficking involves a child, the 'means' element of the test does not apply.
The Council of Europe's Anti-Trafficking Convention 2005 adopts the same definition of trafficking as the Palermo Protocol and contains a number of similar provisions. But, unlike its UN counterpart, the treaty contains a specific provision for the non-punishment of victims. Section 26 provides:
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 EU's Anti-Trafficking Directive (2011/36) also contains a non-punishment provision in Article 8:
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 the definition of trafficking).
The UK Government, partly to implement these international obligations, introduced legislation to combat trafficking. Section 45 of the Modern Slavery Act 2015 provides a statutory defence for victims of modern slavery to certain offences in circumstances where they are compelled to commit a crime. In Scotland, section 8 of the Human Trafficking and Exploitation (Scotland) Act 2015 requires the Lord Advocate to publish instructions to prosecutors regarding prosecution in the same circumstances. In Northern Ireland, there is a statutory defence in section 22 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 for victims who have been compelled to commit certain offences where the compulsion was attributable to slavery or exploitation.
The case before the Strasbourg Court concerned two Vietnamese children who had been charged and convicted of drug-related offences in 2009. One of the applicants was discovered by police in Cambridge in a four-bedroom house that had been set up as a cannabis factory. The other applicant was found by police, hiding with other Vietnamese children in the vicinity of a cannabis factory in London. Central to the applicants' claims was a purported failure by the police, prosecutors and judiciary to adequately protect them as victims of trafficking. Both had been charged, prosecuted, convicted and sentenced for criminal offences connected to their trafficking.
In the first applicant's case, the UK Border Agency and social services had indicated to the Crown Prosecution Service that there were reasonable grounds for believing the applicant had been trafficked. Despite this, the Crown continued with the prosecution. The applicant, who had pleaded guilty, received legal advice not to change his plea despite the view that he had been trafficked. His lawyer apparently thought that social services were 'outrageous' in suggesting a change in plea. He was sentenced to twenty months' detention in a young offenders' institution.
In the second applicant's case, the Crown considered that he was smuggled into the country, rather than a victim of trafficking. He was, like the first applicant, advised by his lawyer that he had no defence, and following a guilty plea, was sentenced to an eighteen-month detention and training order. Unlike the first applicant, it was not until after the second applicant had been sentenced that these authorities (including the NSPCC National Trafficking Advice and Information Line) made their determinations that he was a victim of trafficking. Nonetheless, in spite of these developments, the Crown, having reviewed the applicant's case, remained firmly of the view that the applicant was not a victim of trafficking and that the public interest required prosecution.
Both applicants' appeals were dismissed by the Court of Appeal in 2012. The first applicant's case was further considered by the Court of Appeal in 2016, having been referred by the Criminal Case Review Commission. But, yet again, it was dismissed: the court being satisfied that the applicant's culpability had not been reduced to such a level that he should not be prosecuted in the public interest.
The Court's ruling
It is now well-established that trafficking in human beings falls within the scope of article 4 of the Convention, which prohibits slavery, servitude and forced or compulsory labour (Rantsev v Cyprus 2010). Broadly speaking, Article 4 in the context of trafficking imposes three types of positive obligations on the State: (1) a duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (2) a duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (3) a procedural obligation to investigate situations of potential trafficking.
The Court began its first ever consideration of the issue of the prosecution of trafficking victims by confirming that, in line with the relevant international instruments, there is no general prohibition on the prosecution of victims. However, it held that in certain circumstances the prosecution of victims will be at odds with the operational duty (duty 2 above) to take measures to protect victims, or potential victims, of trafficking. The key question was therefore whether the operational duty has arisen in the circumstances of the case. The operational duty was said to arise
where the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at a real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention (the definition set out above).
Like the equivalent operational duties under articles 2 and 3 ECHR, the question whether and at what point the duty becomes engaged is very much fact-specific. In applying the test to the facts of the V.L.T. case, the Court put particular emphasis on the age of the applicants (that they were minors) and the specific vulnerable group of which they were members (Vietnamese minors). At the time of the applicants' arrest, Vietnamese minors had already been identified as a specific vulnerable group by various scoping reports. From that moment, the authorities should have been alert to the possibility that they were dealing with victims of trafficking. The police and the Crown Prosecution Service should have been alert to the possibility 'from the very outset' in the case of the first applicant (§118) and, in the second applicant's case, the duty kicked in 'at the very latest' from the point at which it was confirmed that he was a child (after some initial confusion). Moreover, in the second applicant's police interview, the account he gave of his circumstances should have given rise to cause for concern, irrespective of whether he was a child (§175). In particular, he claimed that the cannabis factory door was guarded and locked from the outside, that he was not paid for his work and that he might have been killed if he stopped working. Those factors correspond to some of the criteria in the definition of trafficking in the Palermo Protocol and Anti-Trafficking Convention – to which regard must be had at all times.
The Court further explained that the operational duty has two aims: to protect the victim of trafficking from further harm; and to facilitate his or her recovery (§159). As soon as the operational duty kicks in, referral should be made to a Competent Authority under the National Referral Mechanism (§172, §175) and the individual should be assessed promptly by individuals trained and qualified to deal with victims of trafficking (§160). Any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person (§161). The Court was particularly critical of the Crown for pressing ahead with prosecution before coordinating with the relevant bodies. Although prosecuting authorities are not bound by decisions of other bodies as to whether an individual is a victim of trafficking, "clear reasons" consistent with the definition of trafficking contained in the Palermo Protocol and Anti-Trafficking Convention should be given for reaching a different conclusion. In both the applicants' cases, the Crown put forward no such reasons. Any justification put forward for disagreeing with the UKBA (and NSPCC NTAIL) related to 'peripheral issues' – such as the fact that the applicant had cash and a mobile phone – and did not go to the core of the elements necessary to establish trafficking (§170). The Court of Appeal was also criticised for relying on the same 'inadequate reasons' and for ignoring its own case-law and existing CPS guidance which indicated that trafficked children may be reluctant to disclose the circumstances of their exploitation and that prosecutors should be alert to that possibility (§180). It followed from all of this that the UK had failed in its duty under article 4 of the Convention to take operational measures to protect the applicants, both initially, as a potential victim of trafficking, and subsequently as a person recognised by a Competent Authority to be a victim of trafficking.
A fair trial issue also arose under article 6 of the Convention. There were three key questions the Court had to answer. First, did the failure to assess whether the applicants were victims of trafficking before they were charged and convicted raise an issue under article 6(1)? The Court said that it did. Evidence concerning an accused's status as a victim of trafficking is a 'fundamental aspect' of the defence which he or she should be able to secure without restriction (§196) and the State could not rely on any failings by the applicants' legal representatives in this regard. The second issue was whether the applicants' guilty pleas constitute a waiver of their fair trial rights. Applying its well-established case-law, the Court found that their rights were not waived because the guilty pleas were not made 'in full awareness of the facts' and any waiver would run counter to the important public interest in combatting trafficking and protecting its victims (§202). Finally, the Court conducted its usual analysis of the fairness of the proceedings as a whole, finding that the appeal proceedings were not able to cure the defects which had led to the applicants' charging and eventual conviction; the Court of Appeal's review was too narrow and relied on the same inadequate reasons which were advanced by the CPS. As such there had been a violation of Article 6. Both applicants were awarded sums of 25,000 in respect of non-pecuniary damage.
It should be noted at the outset that the finding of a violation of articles 4 and 6 in this case is not a finding that the UK's general framework for protecting victims of trafficking is inadequate. Rather, it concerns the operational measures that were taken in the specific circumstances of the applicants' cases. Moreover, the events took place before the legislative developments outlined above. There was thus no statutory defence in the form of section 45 of Modern Slavery Act; the only ways in which the article 4 obligations could be met at the time were through prosecutorial discretion, the defence of duress, or an application to stay proceedings if the process of the court was abused. This case does not therefore fundamentally undermine the measures put in place by the U.K. Government to protect its victims of trafficking.
Having said that, it is the first time that the Court has decided on this issue and the guidance it has given undoubtedly has important practical implications. The key takeaways for those dealing with potential victims of human trafficking are likely to be the following. First, early identification is of 'paramount importance'. This is particularly so when the potential victim is a child.
Second, co-ordination between the relevant bodies is imperative. The UK Government created the National Referral Mechanism according to which there are two Competent Authorities (the UK Border Agency and the UK Human Trafficking Centre) responsible for making conclusive decisions about whether someone has been trafficked for the purposes of exploitation. Prosecutors should wait until a trafficking assessment has been made by a qualified person before making a decision whether to prosecute.
Third, prosecutors do not have to agree with the human trafficking assessment made by one of the Competent Authorities. It is open to them to disagree on the basis of 'clear reasons' or, even if they accept that the individual is a victim of trafficking, prosecution may still be a possibility if it is considered that there is no nexus between the offence and the trafficking.
This may assuage the concerns among some law enforcement participants in the UK that the section 45 defence in the Modern Slavery Act is being used as a 'loophole' for offenders identifying as victims (Independent Review of the Modern Slavery Act para 4.1.4). However, it seems that any disagreements should be stringently reviewed. In the V.C.L case the Strasbourg Court was unimpressed by the CPS and Court of Appeal's reliance on 'peripheral issues' unrelated to the definition of human trafficking.
Finally, the status of an individual as a victim of trafficking has implications in terms of the fairness of the trial. As soon as the operational duty is triggered under article 4, it is incumbent on the State at all times to take measures to protect the victim. The failure of an individual or his or her lawyer to raise any issues in terms of article 6 does not absolve the State of responsibility. The Strasbourg Court was critical of the Court of Appeal's dicta to the effect that it would only be "in the most exceptional cases" that the court would consider it appropriate to allow the defendant to advance fresh instructions about the facts for the purposes of an appeal against conviction. In the Strasbourg Court's view, such an approach 'would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them.' The same dicta on the giving of fresh instructions in trafficking cases continues to be applied domestically (see e.g. BTT v R  EWCA Crim 4 at 37) and may require revision in light of this case.
Aside from this latter point, most of these factors are already incorporated into the relevant prosecutorial guidance (see for example, the CPS guidance on Human Trafficking, Smuggling and Slavery; and the Lord Advocate's guidance).
The true importance of the case might, then, be found in its impact on attitudes and awareness rather than resulting in any changes to the applicable guidance. In an area imbued with discretionary judgments and assessments, this might actually be more significant.
More generally, the case forms the latest development in a fast moving area of human rights jurisprudence, following hot on the heels of last years Grand Chamber judgment in S.M. v Croatia 2020. Consistent with an 'integrated approach' to interpretation, the Court has incorporated a number of the relevant international standards on human trafficking into its article 4 case-law. The non-prosecution of victims is the latest important principle to make its way into ECHR jurisprudence, bolstering the protection on offer to victims of trafficking.