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Anonymity for child defendants who are the victims of trafficking

R v L; R. v N [2017] EWCA Crim 2129, unreported, 23 November 2017, CA

This case is the most recent in an increasingly long line of authorities considering the UK’s international obligations to victims of trafficking who are forced to commit crimes integral to their trafficked status. The obligations derive from the Council of European Convention on Action Against Trafficking in Human Beings 2005, and from the EU Directive 2011/36 on Preventing and Combating Trafficking in Human Beings, and are now reflected in the Modern Slavery Act 2015.


Whilst the Court of Appeal (Criminal Division) (‘CACD’) set aside the convictions of two young Vietnamese men convicted of cannabis cultivation because they should have had the benefit of those protections, the particular importance of this decision is the focus on anonymity. To date the CACD has granted anonymity to those applicants who have sought it in such cases, generally following the practice of the civil division in asylum and immigration cases. In this case, however, the Registrar sought full argument on the issue, concerned as he was with erosion of the principle of open justice. The Press Association was invited to make submissions but declined.At the time of their arrests the applicants were both age disputed minors from Vietnam. By the time of their appeals against conviction (both long out of time), the fact that they were minors at the time was no longer disputed and they had pending international protection appeals based on refugee and human rights grounds. They relied upon the Practice Note, the Upper Tribunal (Immigration and Asylum Chamber): Guidance Note 2013 No 1: Anonymity Orders, Article 28 of the CE Convention (which requires effective and appropriate protection from potential retaliation or intimidation, during and after investigation and prosecution of perpetrators, for victims and others who assist in the investigation and prosecution of crimes committed by traffickers), and evidence from two human trafficking expert practitioners (Philippa Southwell and retired MPS Superintendent, Bernard Gravett) to argue that victims of trafficking  should be protected by an anonymity order because of the fear of reprisals from traffickers and/or that a consistent approach is necessary across jurisdictions.

Whilst the court declined to give general guidance, it did admit the practitioner evidence of fear of reprisals from traffickers if anonymity is not granted and accepted in principle that it would be desirable to follow the practice of the civil division of the Court of Appeal. In considering the two cases before it, and applying the principles in Khuja v Times Newspapers Ltd and others, [2017] UKSC 49, [2017] 3 W.L.R. 351, SC, the court granted anonymity to both applicants on the basis that it was necessary in the interests of justice as their rights under Articles 2 and 3 of the European Convention on Human Rights were potentially engaged and that a failure to do so would undermine the existing anonymity orders in concurrent jurisdictions.


Children who commit crimes as a result of being exploited by traffickers are victims. Those who are prosecuted for the alleged crimes suffer a further injustice.  This case recognizes the UK’s legal obligations to protect them and youth justice lawyers should consider making similar applications in relevant cases.


By Maya Sikand, Barrister, Garden Court Chambers