The Criminal Cases Review Commission (the CCRC) is warning that both defence and prosecution lawyers need to become more alert to the issues relating to victims of human trafficking if miscarriages of justice are to be avoided.
The CCRC has already referred the case of a teenage victim of human trafficking to the appeal court where the conviction has been quashed. The Commission believes there are likely to be many more cases where the system has failed victims of human trafficking because the defence did not take account of trafficked circumstances and the prosecution did not consider whether it was in the public interest to prosecute.
Two reports show that there are potentially large numbers of foreign national women in prisons who may have been victims of human trafficking (one is the Prison Reform Trust’s No Way Out briefing paper on foreign national women in prison published in January 2012; the other is The Criminalisation of Migrant Women by Dr Liz Hales and Professor Lorraine Gelsthorpe of Cambridge University, which was published in August 2012). Reports from within prisons with significant numbers of foreign national prisoners also suggest that there are large numbers of Vietnamese victims of human trafficking in custody.
The case already referred by the CCRC - the T case - involved a female victim of human trafficking who in 2007 was found trying to fly out of Heathrow with a passport that did not belong to her. She was convicted of possession of an identity document with intent under section 25(1) of the Identity Cards Act 2006. In the course of the proceedings, T came into contact with the police as well as defence and prosecution lawyers, but no one asked the right questions or recognised her situation for what it was.
T, who was then aged 17, was arrested at Heathrow Airport trying to escape her trafficked situation. A duty solicitor was present at the police interview which lasted only ten minutes. The CPS was satisfied that all key evidence was available; it identified the public interest as relating to ‘the likely penalty and nature and seriousness of the offence’; and even noted that there were ‘no victim issues’.
The day after her arrest and police interview, T took her defence lawyers’ advice and pleaded guilty in the Youth Court. There was a pre-sentence report prepared that mentioned an older man who had brought T to the UK and then used her as a prostitute, but even this seems to have failed to ring the alarm bells. T was sentenced to a four months’ detention and training order.
The full account of what had happened to T only emerged after her conviction. This was despite the fact that there were clear signs in her interview that she was a victim of human trafficking. Neither the police nor her lawyer made enquiries to assess whether she might be a victim of human trafficking. It was the prison who referred her to the Poppy Project, an organisation which cares for victims of human trafficking and which assessed T to be a credible victim of human trafficking.
T applied to the CCRC through her solicitor, Cassandra Bligh of Dalton Holmes Gray. It was clear that T’s case was an horrific tale of trafficking for the purposes of prostitution. T was raped, beaten, imprisoned and prostituted in various places. Her account of her treatment was supported by medical reports detailing scarring and post-traumatic stress disorder.
Article 26 of the Europe Convention on Action against Trafficking in Human Beings, which the UK has ratified, says that each state party: ‘shall in accordance with the basic principles of its legal system, provide 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.’
It is important to note that Article 26 does not provide a defence. It simply states that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it.
R v O  EWCA Crim 2835 was a similar case to that of T in that O had been arrested at Dover trying to escape her trafficked situation to France. Despite being presented with evidence that O was a credible victim of human trafficking, the barrister in O ignored this and advised O to plead guilty. The Court of Appeal had no hesitation in quashing the conviction. It highlighted the report on O by the Poppy Project which made ‘horrifying reading’ and noted that neither the defence nor the prosecution had investigated her history or considered whether she had a defence of duress.
In many cases, it will not be possible to run a defence of duress. This was the case in T where the gap between T’s escape from her trafficker and her arrest at Heathrow was between six and 12 weeks. However, this was not the end of the matter. Article 26 requires the prosecutor to consider whether it is in the public interest to prosecute at all. The CPS has produced excellent guidance in this area which, for example, draws attention to the fact that the experience of trafficked victims is likely to be outside the knowledge and experience of prosecutors. This is equally true of others who come across victims of human trafficking whether immigration officials, police, defence lawyers, magistrates and judges.
In R v LM, MB, DG, Tabot and Tijani  EWCA Crim 2327, which the CCRC relied on when it referred the T case in 2011, it was noted that the guidance to prosecutors issued by the CPS to comply with the Convention imposes on them a duty which includes, but is wider than, the common law defences of duress and necessity. The effect of this is to require of prosecutors what the court in LM described as a ‘three-stage exercise of judgment’:
- is there reason to believe that the person has been trafficked? Active steps should be taken to consider whether this is a possibility taking into account the fact that victims of human trafficking may be inhibited from complaining due to fear of authorities and ignorance about their status as trafficked victims;
- if there is clear evidence of a credible common law defence, the case will be discontinued in the ordinary way on evidential grounds; but importantly;
- even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking (a ‘nexus of compulsion’), prosecutors should consider whether or not it is in the public interest to prosecute.
In the T case, the CCRC concluded that T was a credible victim of human trafficking as her account of being trafficked was supported by independent reports. The CCRC also decided that there was a ‘nexus of compulsion’, that is, a connection between her offence and the circumstances of being a victim of human trafficking. Those circumstances included her age, her psychological and physical trauma and scarring, her fears of ‘juju’, or witchcraft, and other threats made by her trafficker. The CCRC also took into account relevant CPS policy guidance at the date of the review and from the time of trial.
T had not sought help from anyone in authority. The CCRC considered a Home Affairs Committee report which stated that trafficking is a hidden crime and that its victims cannot or dare not make themselves known to the authorities for fear of retaliation, because they are or think themselves to be illegal immigrants, because of corruption in their own country or because traffickers have told them that the UK authorities will maltreat them. T’s account was that her trafficker had told her that he would take her to the police or the immigration authorities if she screamed or shouted. It is noteworthy that even when T was interviewed by police she was unable to fully disclose what had happened to her.
In making its referral, the CCRC observed that the CPS failed to properly assess the public interest in the T case as it did not consider whether T might be a victim of human trafficking. The CCRC concluded that T was so vulnerable that if the CPS had applied ‘its mind conscientiously to the question of public policy and reached an informed decision’, following LM & others, it ‘would have, or might well have’ exercised its discretion in the public interest not to prosecute had it known everything that is now known about T. The T case was referred to Isleworth Crown Court and quashed last year.
Victims of human trafficking may be convicted of a range of offences, not only identity offences as in the T case. For example, there may be offences relating to obtaining a false passport to get work; working on cannabis farms; stealing by children; offences relating to the sex industry; domestic servitude and slavery.
It is important that lawyers are alert to the possibility that a client may be a victim of human trafficking and make the appropriate enquiries, if these have not been made, via organisations such as the Poppy Project or the Salvation Army. Advice may also be sought from the NSPCC or from the comprehensive Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK edited by Parosha Chandran, a leading barrister in this area, which was published in 2011.
The CCRC has the luxury of hindsight because it comes to a case at the end of all proceedings. It may be difficult to determine whether a person is a victim of human trafficking at the time of arrest or during interview. Nevertheless, it is important to be alert to these possibilities if future miscarriages of justice are to be averted.
Yewa Holiday is a barrister working at the Criminal Cases Review Commission