Prosecution - People trafficking - Child trafficking for labour exploitation

R v N; R v E: Court of Appeal, Criminal Division (Lord Judge CJ, Mr Justice Royce and Mr Justice Globe): 21 February 2012

Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 provides: 'Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims (of trafficking) for their involvement in unlawful activities to the extent that they have been compelled to do so.'

Article 26 of Council of Europe Convention on Action Against Trafficking in Human Beings 2005, (the Convention) required the United Kingdom to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they had been compelled to do so. For the purposes of the Convention, any person aged under 18 years was a 'child'. The instant appeals were heard together because they concerned two defendants under the age of 18 who had allegedly been trafficked into the UK for labour exploitation and the issue of prosecuting victims of human trafficking and/or exploitation for offences involving the production of cannabis.

N, who was Vietnamese, was one of a number of persons arrested at a cannabis factory. It emerged that he had entered the UK illegally, having been recruited by a Vietnamese man. Upon his arrival in the UK he had been housed at the cannabis factory where he had slept on the floor and he had been provided with meals. N had been told that he was not allowed to leave, but he had not been physically detained. He had worked as a gardener in the factory without pay. N pleaded guilty to being concerned in the production of a Class B drug, cannabis. He was sentenced to a detention and training order for 18 months.

L, who was Vietnamese, was one of a group of defendants charged with offences arising from the production of cannabis following the execution of a drug warrant at an address. The prosecution's case was that his role had been that of a gardener at a converted cannabis factory. When he was interviewed, L stated that he was 15 years old. A finding of fact was made by the district judge in the magistrates' court that L was aged 17. L contended that he had been 'smuggled' into the UK by his adoptive father, but that he had lost touch with him and had wondered the streets until he had been taken by two Vietnamese men to the cannabis factory.

He stated that he had worked at the factory in return for groceries. L pleaded guilty to one count of producing a Class B drug, namely cannabis. He was sentenced to 20 months' detention in a Young Offender Institution less time spent in custody on remand. The defendants appealed against conviction and sentence. The Court of Appeal considered fresh evidence concerning the defendants and as to general policy in respect of prosecuting victims of human trafficking.

The issue for consideration was whether the process of the court had been abused by the decision of the prosecuting authority to prosecute the defendants. In particular, whether the circumstances in which the defendants had been working at the time of their arrests represented a level of coercion and compulsion which, pursuant to article 26 of the Convention, should have led to a decision not to prosecute. The defendants submitted that the convictions were unsafe and that the sentences were manifestly excessive. Consideration was given to the Crown Prosecution Service (CPS) policy (the 2011 policy) on prosecuting victims of human trafficking and to the correct approach in respect of the court receiving fresh evidence in cases involving human trafficking. Consideration was also given to R v O [2008] All ER (D) 07 (Sep). The appeals against conviction would be dismissed. The appeals against sentence would be allowed.

(1) It was settled law that the implementation of the UK's Convention obligation was normally achieved by the proper exercise of the long-established prosecutorial discretion which enabled the CPS, however strong the evidence might be, to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who was unable to advance duress as a defence but who fell within the protective ambit of article 26 of the Convention. That required a judgment to be made by the CPS in the individual case in the light of all the available evidence. That responsibility was vested not in the court but in the prosecuting authority. The court might intervene in an individual case if its process was abused by using the ultimate sanction of a stay of the proceedings.

The burden of showing that the process was being or had been abused on the basis of the improper exercise of the prosecutorial discretion rested on the defendant. Apart from the specific jurisdiction to stay proceedings where the process was abused, the court might also, if it thought appropriate in the exercise of its sentencing responsibilities, implement the article 26 obligation in the language of the article itself, by dealing with the defendant in a way which did not constitute punishment, by ordering an absolute or a conditional discharge. The protective ambit of the Convention was not limited to those who had, by whatever means, crossed international boundaries.

Sometimes those born and brought up in the UK fell within the ambit of the trafficking in human beings prohibited by the Convention, and sometimes those who had not been trafficked into the country become victims of trafficking after their arrival here. The Convention applied to them equally as it did to those who had been trafficked into the UK for the purposes of exploitation.

The 2011 policy Guidance recognised that there were cases in which the distinction between a smuggled and a trafficked individual would be 'blurred', and that an individual who might have been smuggled into the country, might become a victim of trafficking. There was increasing and much more detailed focus on the need for greater awareness of the problem of trafficking for the purposes of forced labour and domestic servitude. In the context of prosecuting a suspect who might be a trafficked victim, R v O recognised the need for all reasonable steps to be taken to identify victims of trafficking, and the need to be proactive in the process and it pointed out that prosecutors could only take appropriate steps if they had information from the police or other sources that the suspect might be a victim of trafficking (see [21], [61], [89] of the judgment).

In the instant case, in respect of N, the evidence did not lead to the conclusion that the conviction was unsafe on the basis that the prosecution constituted an abuse of process and violated the UK's Convention obligations. There was no evidence before the Crown Court, or the CPS or the defence, which suggested that N had been trafficked into the UK, or that he fell within the protective ambit of article 26 of the Convention. Rather the effect of the evidence was that he was a volunteer, 'smuggled' into the UK to make a better life for himself and that he had a home with a family member to which he could have gone and where he would have been welcome. Having considered fresh material, the evidence, which suggested that N was, pursuant to article 26 of the Convention, 'compelled' to work in the conditions he had worked, was nebulous.

However, the evidence did not lead to the conclusion that the conviction was unsafe on the basis that the prosecution constituted an abuse of process and violated UK Convention obligations. In respect of L, on the facts, the decision to prosecute was amply justified (see [56], [91], [111] of the judgment). R v O [2008] All ER (D) 07 (Sep) applied; R v Mullen [1999] All ER (D) 108 considered; R v LM [2010] EWCA Crim 2327 considered; R v SK [2011] All ER (D) 73 (Jul) considered.

(2) In the
case of N, the sentence imposed did not sufficiently reflect the age, namely 16, and circumstances of the defendant when he had been involved in the work, including the very short period during which he had worked in the factory, as well as his guilty plea. Allowing for the size of the criminal enterprise in which he had been involved, an immediate custodial sentence was appropriate (see [93], [113] of the judgment). The sentence in the case of N would be reduced to a four-month detention and training order. Given L's age and his guilty plea, a 12-month custodial sentence would have been sufficient. The order would be varied accordingly (see [93], [113] of the judgment).

Per curiam: In the context of fresh evidence, in cases which involve article 26 of the Convention, a series of considerations of broad general effect apply (see [86] of the judgment).

Peter Carter QC and Parosha Chandran (assigned by the Registrar of Criminal Appeals) for N; Daniel Bunting (assigned by the Registrar of Criminal Appeals) for E; Tim Owen QC and Benjamin; Douglas-Jones (instructed by the Crown Prosecution Service) for the Crown.