A landmark judgement by the European Court of Human Rights (ECtHR) in V.C.L. and A.N. v The United Kingdom nos. 77587/12 & 74603/12 found that UK authorities, including the police, Crown Prosecution Service (CPS), and courts failed to identify and protect two children who were victims of trafficking. The children were prosecuted, convicted, and imprisoned for offences arising out of being trafficked. The prosecutions took place despite credible suspicions that the children were victims of trafficking. Articles 4 and 6 of the ECHR were breached.
PROCEEDINGS IN THE UK COURTS
V.C.L. and A.N. were Vietnamese nationals who arrived in the UK as teenagers. In 2009 each child was found either in or near houses which had been converted to cannabis factories. They were 15 and 17 years old respectively, at the time.
V.C.L. initially gave his barrister instructions that he was not guilty. However, he changed his instructions to “guilty” after hearing his barrister’s advice. The barrister failed to advise on trafficking issues. V.C.L. then pleaded guilty to production of a controlled drug. Subsequently, the Competent Authority found conclusive grounds that V.C.L. was a victim of trafficking. Nonetheless, the CPS continued his prosecution on the instructions of the Chief Crown Prosecutor. Further, the then Director of Public Prosecutions, Sir Keir Starmer QC, explained in a letter to an MP “that the prosecution had not been discontinued because the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking”. A judge gave V.C.L. the opportunity to apply to vacate his plea. This was supported by social services, which his counsel described as “outrageous”. No application to vacate the plea was made.
A.N.’s case was reviewed by the CPS, who accepted that he had been smuggled into the UK. Nonetheless, his barrister advised him that he did not have a defence, and he pleaded guilty. The Youth Offending Team interviewed him, and based on that interview alleged that he had acted “for financial gain”. Subsequently, the Competent Authority found conclusive grounds that he was a victim of trafficking.
With new representation, both V.C.L. and A.N. appealed against their convictions. Their appeals were refused. Permission to appeal to the Supreme Court was also refused. Additionally, V.C.L. pursued a further appeal following a successful referral of his case by the Criminal Cases Review Commission. This appeal also failed and permission to appeal to the Supreme Court was again refused.
THE ECtHR JUDGMENT
V.C.L. and A.N. applied to the ECtHR. In A.N.’s case, Liberty, GRETA and Anti-Slavery International were granted leave to intervene.
Article 4
A.N.’s case was that Article 4 was breached because the police, CPS, and judiciary failed to identify him as a victim of trafficking at all before he was convicted. Therefore, he had not been given the protection he needed and was entitled to. The UK had failed to comply with its duty to investigate his traffickers or honour the non-criminalisation of trafficking victims for offences which directly related to their being trafficked. V.C.L argued that during the criminal proceedings the police and CPS had not conducted an Article 4 compliant investigation into whether he had been trafficked. Operational measures designed to protect him had not been adopted.
The ECtHR agreed. In particular, it found that:
the duty to take operational measures under Article 4 has two aims. First, to protect the victim from further harm, and second to facilitate their recovery. Prosecuting victims could impede these aims [§159],
this requires taking appropriate measures within the state’s powers to remove a victim from risk [§152-153]. It includes a procedural obligation on states to investigate situations of potential trafficking [§156],
in order for prosecution to comply with Article 4, early identification of victims is “of paramount importance” [§160]. This means prompt assessment by people properly trained and qualified to deal with victims of trafficking. Decisions on whether to prosecute or not should only really happen after that [§161], and a prosecutor is not bound by the state’s trafficking assessment, but they would need clear reasons for disagreeing with it [§162].
From very early on in both cases the police and CPS should have spotted that the circumstances in which A.N. and V.C.L. were suspect. They were both children found in or near a cannabis factory and there was ample reliable guidance and reports that this was a common child trafficking scenario. Therefore, an operational duty to protect them arose shortly after they were discovered.
Neither the police nor the CPS had referred V.C.L. to the Competent Authority for assessment of whether he was a victim of trafficking. When he was eventually found to be a trafficking victim, it was open to the CPS to disagree with the Competent Authority, or to prosecute anyway if it was unrelated to his offending. But the disagreement must be for clear and adequate reasons and be consistent with the Palermo Protocol and the Anti-Trafficking Convention definition. That didn’t
happen. In A.N’s case, the CPS lawyer never really dealt with the fact that the factors which caused the CPS to doubt him had already been considered by the Competent Authority.
Therefore, the CPS, and the Court of Appeal, were wrong and there had been a failure to protect A.N. and V.C.L. in breach of Article 4.
Article 6
In relation to the right of the defence to carry out investigations, the ECtHR held that evidence concerning an accused’s status as a victim of trafficking is a “fundamental aspect” of the defence which a defendant “should be able to secure without restriction”. Further, the fact that a defendant’s lawyer did not refer their case to the Competent Authority could not be treated as a waiver of the right to rely on their status as a victim of trafficking in their defence [§§ 197-199].
Where the state’s failure to conduct a timely assessment of whether the applicants had in fact been trafficked had breached Article 4, the lack of such an assessment prevented the applicants from securing evidence which may have constituted a fundamental aspect of their defence. This in turn breached Article 6 [§ 200].
Helpfully, the ECtHR also held that the guilty pleas did not constitute a valid waiver of their Article 6 rights given that the absence of investigation of their trafficking claims meant that their guilty pleas were not made “in full awareness of the facts”.
Further, the ECtHR criticised the CPS in both cases, for ignoring the decisions of the Competent Authority for “wholly inadequate” reasons [§ 207]. The Court of Appeal also faced criticism for endorsing the wholly inadequate reasoning of the CPS, and for creating an expectation that it is the victims of trafficking who create obstacles for a trafficking-based defence at their trial, when this ran counter to accepted understandings of the difficulty in making disclosure of such a defence [§ 208].
COMMENTARY
It is well established that Article 4 imposes positive obligations on states (see e.g. Ranstev v Cyprus and Russia no. 25965/04). However, this was the first case about the prosecution of a trafficking victim.
The ECtHR did not say that trafficking victims should never be prosecuted [§158]. The question is whether, as a matter of public policy, prosecution is in the public interest. The seriousness of the offence and the connection between the trafficking and the offending will be relevant factors in determining the public interest.
This is not the first time that prosecutors and even defence lawyers have faced scrutiny for not being thorough enough in identifying trafficking victims and assessing the actual public interest in prosecution. In R v O [2008] EWCA Crim 2835, the Court of Appeal called a similar failure to properly investigate ‘shameful’. It is significant that the ECtHR places squarely on the authorities the responsibility for getting this right. Also significant is the weight given to the Competent Authority’s view, which should be unsurprising given that its expert function is to investigate trafficking claims.
The prosecution of potential trafficking victims can have lifelong and wide-ranging consequences which go far beyond imprisonment: conviction can result in deportation. Against a background of threats by the authorities to victims of trafficking, it is therefore increasingly important that these decision are made properly, as soon as possible, and with the greatest protection being given to an obviously very vulnerable group.
Eleri Griffiths is a barrister at One Pump Court Chambers and specialises in immigration and housing law cases. She is also a member of the multi-disciplinary Modern Slavery and Trafficking team. She acts in private and public law matters and often represents individuals against various state bodies.
Stephen Knight is a barrister specialising in criminal appeals, immigration, and public law at One Pump Court Chambers. He has considerable experience in criminal appeals and judicial review cases.