The Criminalisation of Victims of Trafficking Legal Framework The UK is bound by the Council of Europe Convention on Action against Trafficking in Human Beings referred to as the Trafficking Convention. This treaty was ratified on 17 th December 2008 and brought into force on 1st April 2009. The Trafficking Convention, Article 26, provides for the possibility of States not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so. Guidance in England and Wales Legal and policy guidance published by the Crown Prosecution Service (the CPS Guidance) was first published in 2007. The Guidance advises prosecutors that when reviewing a case, where there are suspicions that the suspect might be a victim of trafficking they should be pro active when making enquiries and obtain further information about the circumstances the suspect was apprehended. The CPS Guidance. http://www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling/ Prosecution of Defendants charged with offences who might be trafficked victims. The Trafficking Convention places specific and positive obligations upon EU States to prevent and combat trafficking and protect the rights of victims. It provides 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. Some of the most frequently committed activities are: Causing or inciting / controlling prostitution for gain: Sections 52 and 53 Sexual Offences Act 2003; Keeping a brothel: Section 33 or 33a Sexual Offences Act 1956; Theft (in organised "pickpocketing" gangs), under section 1 Theft Act 1968; Cultivation of cannabis plants, under section 6 Misuse of Drugs Act 1971. But trafficked victims may also be apprehended by law enforcement where they are escaping from their trafficking situation, the most obvious being immigration offences: 45
Using a false instrument under section 3 of the Forgery and Counterfeiting Act 1981; Possession of a forged passport or documents under section 5 of the Forgery and Counterfeiting Act 1981; Possession of a false identity document under section S6 Identity Documents Act 2010; Failure to have a travel document at a leave or asylum interview under section 2 Asylum and Immigration (Treatment of Claimants) Act 2004. When reviewing any such cases, prosecutors must be alert to the possibility that the suspect may be a victim of trafficking and take the following steps: Advise the senior investigating officer to make enquiries and obtain information about the circumstances in which the suspect was apprehended and whether there is a credible suspicion or realistic possibility that the suspect has been trafficked The police should be advised to consider referring the suspect through the national referral mechanism (NRM) to the competent authority for victim identification and referral to appropriate support. In the case of children, this can be done by the Local Authority. If the suspect is assessed as being under 18 and has been arrested in connection with offences of cannabis cultivation, police should be referred to ACPO Child Protection: Position on Children and Young People Recovered in Cannabis Farms. Prosecutors should also consider information from other sources that a suspect might be the victim of trafficking, for example from a non-government organisation (NGO) which supports trafficked victims. That information may be in the form of medical reports (for example, psychiatrist reports) claiming post traumatic stress as a result of their trafficking experience; Re-review the case in light of any fresh information or evidence obtained; If new evidence or information obtained supports the fact that the suspect has been trafficked and committed the offence whilst they were coerced, consider whether it is in the public interest to continue prosecution. Where there is clear evidence that the suspect has a credible defence of duress, the case should be discontinued on evidential grounds (but see separate section on Children). In complying with the judgment in R v O [2008] EWCA Crim 2835, it is the duty of the prosecutor to be pro-active in causing enquiries to be made about the suspect and the circumstances in which they were apprehended. 46
It required that both Prosecutors and Defence lawyers are "to make proper enquiries" in criminal prosecutions involving individuals who may be victims of trafficking, in line with the findings of the Parliamentary Joint Committee on Human Rights report on Human Trafficking, that there must be coordinated law enforcement in protecting the rights of victims of trafficking; CPS legal guidance on the prosecution of trafficked victims was recognised; the court advised that this is published more widely to ensure others are aware of it; The court, defence and prosecution were criticised for failing to recognise that O was a minor. The importance of following the guidance was further re-enforced by LM, MB, DG, Betti Tabot and Yutunde Tijani v The Queen [2010] EWCA Crim 2327. Prosecutors should therefore have regard to these wider factors when considering whether the circumstances of the person's situation might support a defence of duress in law. Prosecutors might consider the following: When considering duress was the defendant driven to do what he did because he genuinely believed that if he didn't, he or a member of his family would be killed or seriously injured? Might a reasonable person with the defendant's belief and in his situation have been driven to do what he did? Was there opportunity for the defendant to escape from the threats without harm to himself, for example by going to the police? Did the defendant put himself into a position in which he was likely to be subject to threats made to persuade him to commit an offence of the seriousness of the charge, eg getting involved in a criminal gang likely to subject him to threats to commit criminal offences? Even where the circumstances do not meet the requirements for the defence of duress, prosecutors must consider whether the public interest is best served in continuing the prosecution in respect of the criminal offence. The following factors are relevant when deciding where the public interest lies: is there a credible suspicion that the suspect might be a trafficked victim? the role that the suspect has in the criminal offence? was the criminal offence committed as a direct consequence of their trafficked situation? were violence, threats or coercion used on the trafficked victim to procure the commission of the offence? was the victim in a vulnerable situation or put in considerable fear? 47
Children Children are particularly vulnerable to trafficking and exploitation. Recent experience has highlighted the following offences as those most likely to be committed by trafficked children: Cultivation of cannabis plants, under section 6 Misuse of Drugs Act 1971; Theft (in organised "pickpocketing" gangs), under section 1 Theft Act 1968. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) makes it clear that for child victims, consent is irrelevant; therefore there is no requirement to show the means of trafficking (that is the threat, coercion, or deception. When considering the evidential factors set out in the previous section, in particular the reasonableness of the defendant's belief in the likely harm which might be caused to them or to their family and the likelihood of taking up opportunities to escape the threats, proper allowance should be made for the age, vulnerability and lack of maturity of the young person. Experience has shown that inconsistencies in accounts given are often a feature of victims of trafficking and should not necessarily be regarded as diminishing the credibility of their claim to be a victim of trafficking. The child may have been coached by their trafficker to not disclose their true identity or circumstances to the authorities. In some cases, they may have been coached with a false version of events and warned not to disclose any detail beyond this as it will lead to their deportation. In a similar way to adults, children may have been subject to more psychological coercion or threats, such as threatening to report them to the authorities; threats of violence towards members of the child's family; keeping them socially isolated; telling them that they/their family owes large sums of money and that they must work to pay this off; or through juju or witchcraft practices. Age disputes Young people may have no identifying information on them, their documents may be false or they may have been told to lie about their age to evade attention from the authorities. Some victims may claim to be adults when they are in fact under 18 years of age. 48
Where it is not clear whether the young person is a child (i.e. under 18 years of age) then in line with the United Nations Convention of the Rights of the Child, the benefit of the doubt should be given and the young person should be treated as a child. This is re-enforced in the Council of Europe Convention on Action against Trafficking in Human Beings. Where there is uncertainty about a suspected victim's age, Children's Services will be responsible for assessing their age. The Local Authority in whose area the victim has been recovered will have responsibility for the care of the child as required by the Children Act 1989. Where a person is brought before any court and it appears that they are a child or young person, it is the responsibility of the court to make due enquiry as to their age. Under section 99 Children and Young Persons Act 1933 and section 150 Magistrates' Courts Act 1980 the age presumed or declared by the court is then regarded to be their true age. For further reference on age assessment refer to R (on the application of A) v London Borough of Croydon [2009]; R (M) v London Borough of Lambeth [2009]. This case concerned the duty imposed on local authorities in providing services under the Children's Act 1989 in instances where the local authorities disputed age and assessed them as adults. Recommendation for Deportation in Criminal Proceedings. There have been 3 different provisions by which those convicted or alleged to be involved in criminal offences are rendered liable to deportation. The current powers of deportation are: Automatic deportation Deportation is conducive to the public good. Court recommends deportation 1. Automatic deportation This is the power contained in S32 of the UK Borders Act 2007 and applies to: (a) non British citizens, (b) who have been convicted in the United Kingdom of an offence, AND (c) to whom Condition 1 or 2 applies. 49
Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. Condition 2 is that (a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and Note that imprisonment includes suspended sentences if activated and 12 months or more for a single offence. The use of the word automatic deportation can lead the lay person to believe that there is no alternative but to accept removal on the authority of the deportation order. There are a number of reasons why this is not the case: i) All that meeting the criteria above does is create a statutory presumption (S32(4) Borders Act 2007) that deportation is conducive to the public good and a deportation order must be signed. ii) The exclusions to deportation still apply (S33 of the Borders Act 2007) iii) There are certain exceptions to the power being exercised 2. Conducive to the public good. This is the provision contained within S3(5)(a) Immigration Act 1971 and will apply if Secretary of State considers that the persons continued presence in the United Kingdom is not conducive to the public good. This is not a discretion without structure as the UKBA policy and immigration Rules provide details of when it is presumed that it will be appropriate to pursue deportation and what factors need to be taken into consideration. 3. Court recommended deportation. This provision is contained within S3(6) of the immigration Act 1971. There are certain procedural requirements that the Crown Prosecution Service need to follow in order to give the judge the power and there are certain legal implications if a judge follows this process namely: i) The notice of liability to deport must be served on the defendant by the prosecuting authority at least 7 days before the sentencing hearing. ii) The recommendation forms part of the criminal sentence and only challengeable by criminal appeal. iii) It makes a person with status, such as indefinite leave to remain, subject to immigration detention powers. iv) UKBA cannot act on recommendation if any appeal is pending against conviction or the courts recommendation. The advent of automatic deportation and UKBA s policy in relation to drugs offences will limit the use of this power. 50
Recent case of R v Kluxen; R v Rostas and another [2010] EWCA crim 1081 has set out steps that a sentencing judge should take. i) In cases to which the 2007 Act applies, is it no longer necessary or appropriate to recommend the deportation of the offender concerned. ii) In cases to which the 2007 Act does not apply, it will rarely be appropriate to recommend the deportation of the offender concerned, whether or not the offender is a citizen of the EU. iii) If in a case to which the 2007 Act does not apply a court is, exceptionally, considering recommending the deportation of the offender concerned, it should apply the Nazari test in tandem with the Bouchereau test, there being no practical difference between the two. This is so, whether the offender is or is not a citizen of the EU. iv) However, the court should not take into account the Convention Rights of the offender; the political situation in the country to which the offender may be deported; the effect that a recommendation might have on innocent persons not before the court. Of particular importance is point (iv), which places a requirement on the UKBA to not just blindly follow the recommendation given the fact that the sentencing judge does not take into account the immigration law issues. R v Nazari (1980) 71 Cr.App.R 87 test Court of Appeal guideline authority on recommendations for deportation. Court must address the following before making such an order: i) Whether the accused s continued presence in the UK is to its detriment; ii) The courts are not concerned with the political systems which operate in other countries; iii) The effect that an order recommending deportation will have upon others who are not before the court who are innocent persons. In cases concerning an illegal immigrant a recommendation should normally be made. The final decision is for the Secretary of State to make. 51