On 16 February 2021, the European Court of Human Rights (ECHR) handed down its judgment in the case of V.C.L. and A.N. v the United Kingdom. In a unanimous decision, the Court found that the United Kingdom had violated both Article 4 and Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms following the prosecution of two children who had been the victims of trafficking. This is the first opportunity in which the Court has been called upon to consider if, and when, the prosecution of a victim, or potential victim, of trafficking may raise an issue under Article 4 of the Convention.
The decision concerned two separate criminal prosecutions of children in 2009. Aged 15 and 17 at the time, both were found working in sophisticated cannabis factories and subsequently charged with drug related offences. In both cases, following advice from their lawyers, guilty pleas were entered. Both applicants sought to appeal their convictions and the appeal process is detailed in the judgment of the ECHR. Despite findings by the competent authority that both children had been exploited, and several reviews, the Crown proceeded with the case against them.
In its judgment, the ECHR reviewed our domestic legislation, case law and international law. It concluded that whilst it is clear that no general prohibition on prosecuting victims, or potential victims, of trafficking can be construed from any international instrument (para. 158), in certain circumstances, the prosecution of victims, or potential victims, of trafficking may be at odds with the state’s duty to take operational measures to protect them when they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked (para.159).
The Court concluded that early identification as to whether or not a defendant has in fact been trafficked is of paramount importance (para. 160). As soon as the authorities are aware of circumstances giving rise to a credible suspicion that an individual suspected of committing a criminal offence may have been trafficked or exploited, he or she must be promptly assessed by individuals trained and qualified to deal with victims of trafficking. The Court went on to say that ‘given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, 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. This is particularly important where children are concerned (para161)’. This reinforces the Court of Appeal decision in R v EK  EWCA Crim 261.
The judgment makes clear that where the Competent Authority has concluded that an individual is a victim of trafficking, the prosecution would have to have clear reasons for rejecting the Competent Authority’s opinion. Those reasons must be consistent with the definition of trafficking contained within the Palermo Protocol and the Anti-Trafficking convention. Focusing on matters that have already been considered by the Competent Authority, such as absence of physical injury or inconsistencies in the individual’s account, is insufficient.
The ECHR found that in the case of V.C.L and A.N, the reasons provided for pursing the prosecution were insufficient. The Crown failed to provide any reasons capable of undermining the decision of the Competent Authority. Accordingly, the authorities had failed to fulfil their duty under Article 4 of the convention to take operational measures to protect V.C.L and A.N and the proceedings as a whole could not be considered ‘fair’ resulting in a violation of Article 6 § 1 of the Convention.
Since the enactment of the Modern Slavery Act 2015, every practitioner operating in the Criminal Justice System must be alert to potential victims of exploitation and trafficking as in many cases, if they have been trafficked or exploited, they may have the statutory defence under s.45 of the Act available to them. This is especially so in youth justice given the extra protection given to children under 18. The judgment of the ECHR has highlighted the importance of this; emphasising that early identification of victims of trafficking is of fundamental importance. Too often, as defence lawyers, we see children (and adults) being charged with offences in which the circumstances of the offending give rise to concerns that they have been exploited as was seen in the case of V.C.L and A.N. It is often only after defence lawyers become involved that referrals to the National Referral Mechanism are made.
We have seen an increasing number of prosecutions being stopped when these issues are raised and properly investigated. It is to be noted in this context, two other important recent decisions concerning the operation of the Modern Slavery Act 2015:
R v CS & LL  EWCA Crim 134 confirmed that the act was not retrospective; and
R v DS  EWCA Crim 285 the Court of Appeal (Burnett LCJ & Johnson J) overturned a trial judge’s decision to stay proceedings as an abuse of process on the basis that the defendant had been trafficked. The appeal court found that there had been no extension of the doctrine of abuse of process to protect those who have allegedly been trafficked; that issue is now a matter solely for the jury to decide when applying s.45 of the act.
The decision of the ECHR in V.C.L and A.N now requires that the prosecuting authority undertake a full analysis where there has been a positive conclusive grounds decision to ensure that a more detailed and specific approach is taken in rejecting the findings of the Competent Authority. This in turn should hopefully see a reduction in responses to defence representations which simply state that whether or not an individual is a victim of modern slavery is a matter for the jury.
Philippa Southwell, of Southwell and Partners, who represented VCL, said of the judgment:
“VCL is a ground breaking judgment that is likely to have a positive, wide reaching and significant impact for victims of human trafficking.”
Sabrina Neves and Greg Stewart, GT Stewart Solicitors & Advocates