Abstract
On 26 April 2016, a Vietnamese male (M) was discovered in a flat which was being used for cannabis cultivation. M was arrested and indicted on charges of, inter alia, producing cannabis and being concerned in the supply of cannabis (ss 4(2)(a) and 4(3)(b) Misuse of Drugs Act 1971). M argued he had been compelled to act because he was a trafficking victim but gave conflicting accounts regarding his situation, and, the level (if any) of alleged control by the traffickers.
The Home Office assessed M’s account and concluded he was not a trafficking victim. The respondent, the Lord Advocate, determined there was no reasonable basis for finding that M was a trafficking victim and that the necessary element of compulsion to commit the offence was not present. M was placed on petition. In criminal proceedings, the Crown (the prosecutor) may begin proceedings by petition before deciding whether to prosecute on indictment or by summary complaint. Only serious cases are begun by petition (http://www.scotland-judiciary.org.uk/29/0/Glossary/a#P).
A compatibility minute (notification of intention to raise a compatibility issue), submitted on behalf of M, stated the continued prosecution of M was incompatible with Directive 2011/36/EU (art. 8), which ratified the Council of Europe Convention against trafficking in Human Beings 2005, art. 26. The minute sought a declaration that the Human Trafficking and Exploitation (Scotland) Act 2015 (‘Scotland Act 2015’) was incompatible with EU law (namely, art. 26), due to the absence of a statutory defence for trafficked victims compelled to commit criminal offences and that proceedings should be deserted on grounds of oppression. The minute also sought directive compatible jury directions to be issued or for a reference to be made to the High Court.
The sheriff referred the issue to the High Court, posing the following questions: ‘(1) Is the…(Scotland) Act 2015 incompatible with Directive 2011/36/EU in the absence of a statutory defence to the effect that [M] had been compelled to act as he did as a direct consequence of being subject to human trafficking? (2) In the absence of a statutory defence…is the continued prosecution of M incompatible with Directive 2011/36/EU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights? (3) If the…Act and the…continuation of the…proceedings are compatible with Directive 2011/36/EU, and if at trial the evidence broadly follows [certain] lines…would the court require to give additional directions over and beyond the standard directions so as to give effect to the Directive, and, if so, what additional directions should be given?’
A statutory defence for trafficking victims compelled to commit offences is not a requirement of art. 26 and/or art. 8. Those provisions require the possibility of non-prosecution (at [38–39]), not ‘blanket immunity from prosecution’ (at [36]) (L v M(L) [2011] 1 Cr App R 12 at [13]). The option not to prosecute, when it is not in the public interest, has always been available. Increased recognition of human trafficking operated as a catalyst for the implementation of the 2015 Act reforms in Scotland (Scotland Act 2015, s. 8; Crown Office and Prosecutor Fiscal Service, ‘Lord Advocate’s Instructions for Prosecutors when considering Prosecution of Victims of Human Trafficking and Exploitation’ (‘COPFS Guidelines’), para. 38) and England and Wales (‘E&W’). Section 8 of the Scotland Act 2015 places an obligation on the Lord Advocate to publish instructions regarding prosecutorial discretion in cases involving potential offences committed by the victim of human trafficking (s. 8(1)(a)), or slavery, servitude and forced or compulsory labour (s. 4). The continued prosecution of M was not incompatible with art. 26 and/or art. 8. In the absence of a statutory defence, the strong presumption in the Scotland Act 2015 and the COPFS guidelines against the prosecution of human trafficking victims compelled to commit a crime met the non-punishment provisions contained in art. 8 (at [39–41]). The due deference given to the respondent in deciding to prosecute could be reviewed by the court where a plea in bar of trial on the grounds of oppression is advanced. No grounds were advanced that the decision to prosecute M had not been properly taken in line with the respondent’s instructions (at [40]). No additional direction relating to coercion was required. The potential availability of the common law coercion defence ensured compliance with international obligations. In cases where the circumstances did not support the common law defence of coercion, they might provide powerful mitigation in sentencing (at [42–45]).
Commentary
The present case highlights different approaches to the non-prosecution principle North and South of the border. The Scotland Act 2015, s. 8, and s. 45 of the Modern Slavery Act 2015 (‘MSA 2015’) were introduced in response to the ‘increased recognition of the problem of trafficking’ (at [38]) (‘Combating modern slavery experienced by Vietnamese nationals en route to, and within, the UK’, Independent Anti-Slavery Commissioner Report 2017, para. 4.2.2). Both Acts provide different responses to trafficked victims compelled to commit criminal offences. Section 45 of the MSA 2015, which introduced a statutory defence for victims of trafficking who commit offences, has been heralded an ‘important milestone in protecting trafficked victims’ (Caroline Haughey, The Modern Slavery Act Review: One year on (Home Office, 2016) 2). The position in Scotland, which was to advance specific instructions pertaining to prosecutorial discretion in these cases, rather than implement a defence, has been cited with approval by numerous UK anti-trafficking groups and is regarded an example of best practice. The Scottish approach is said to be preferred to the approach in E&W because of the problems associated with the defence, considered below (AMTG, Class Acts? Examining Modern Slavery Legislation across the UK (2016) 65; GRETA, Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by the United Kingdom, Second Evaluation Round (7 October 2016), para. 290). M’s question, in the instant case, regarding whether the defence in E&W is preferable provides an opportunity to consider the advantages and disadvantages of the respective models.
The Approach Pre-2015
The High Court explained that pre-reform, the position across the jurisdictions was ‘not materially different’ (at [40]). In E&W, international obligations were/are met via: prosecutorial discretion; the common law necessity/duress defences; and, the court’s power to stay a prosecution (R v Joseph (Verna) [2017] EWCA Crim 36: R v GS [2018] EWCA Crim 1824 at [76] at [20]) cited at [39]). Ormerod explained that justice may also be done in sentencing mitigation (at [46–48]). (D. Ormerod, ‘R. v Dao: duress—extent of duress’ (2013) Crim LR 234, 235, 237.)
In Scotland, international obligations are met through: a general discretion not to prosecute; the common law defence of coercion (at [39]); and via mitigation in sentencing (at [44]). Decisions to prosecute are reviewable where the accused submits a plea in bar of trial; a plea might succeed where insufficient regard is given to the Lord Advocate’s instructions and/or where ‘any prospective trial would be unfair’ (at [40]) (Butt v Scottish Ministers [2013] JC 274, LJC (Carloway) at [16]). This was not the case in M. The court noted, ‘the material available suggests that there were significant factors pointing away from [M] having been trafficked in favour of him being a willing economic migrant’ (at [40]).
In a series of judgments in the UK (R v Joseph (Verna) [2017] EWCA Crim 36; van Dao [2012] EWCA Crim 1717; and, R v MK; R v Gega [2018] Crim 667), the Court of Appeal and the High Court (in the present case) took care to reiterate that the law pre-dating the 2015 reforms continues to be compatible with arts 26 and 8. The reforms might be viewed as a gloss on the status quo.
The 2015 Reforms
The approach differs significantly in the context of the 2015 reforms across both jurisdictions. The Scottish Parliament preferred additional guidance at the decision to prosecute stage over the implementation of a specific statutory defence. The Scottish Justice Committee (‘the Scottish Committee’) was concerned that an equivalent defence would place an unnecessary burden on the accused (Scottish Committee, Stage 2 Report on the Human Trafficking and Exploitation (Scotland) Bill, SP Paper 710 21st Meeting, Session 4 (2015) p. 43). M argued however that the absence of a specific statutory defence based on compulsion, akin to s. 45 of the MSA 2015, means that ‘trafficking/slavery victims are less well protected in Scotland, than in other parts of the UK’ (at [20]). The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 ‘had achieved much the same purpose in Northern Ireland, although it only provided a defence in respect of the cultivation, and not concern in the supplying, of cannabis’ (at [19]).
MSA 2015, s. 45 (E&W)
Section 45 of the MSA 2015 introduced separate defences for adult and child victims of human trafficking (ss 45(1) and (4)). Notwithstanding the concerns of the Scottish Committee and the High Court in the present case, the burden of proof rests not on the accused, but on the prosecution to disprove trafficking status, and/or one or more elements of the defence (S. Mennim and N. Wake, ‘Burden of Proof in Trafficking and Modern Slavery Cases: R v MK; R v Gega [2018] Crim 667’ (2018) 82(4) J Crim L 282, 286). The elements of the adult defence are as follows: A person is not guilty of an offence if—the person is aged 18 or over when the person does the act which constitutes the offence, the person does that act because the person is compelled to do it, the compulsion is attributable to slavery or to relevant exploitation, and a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (ss 45(1)(a)–(d))
Since the MSA 2015 received royal assent, a number of criticisms of the defence have been raised. (For discussion, Laird, Evaluating the relationship between section 45 of the Modern Slavery Act 2015 and the defence of duress: an opportunity missed? (2016) Crim LR 395, 404, and S. Edwards, ‘Coercion and Compulsion—Re-imagining Crimes and Defences’ (2016) Crim LR 876, 896.)
Significantly, Sched. 4 arbitrarily excludes so many criminal offences (including, blackmail, theft, forced begging) and potentially so many victims of slavery and trafficking from its ambit that it has the potential to undermine the effectiveness of the defence, meaning that victims must revert to using the common law in E&W (Laird, ibid., 395–404; GRETA, Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by the United Kingdom (2016/21), para. 287).
Despite these criticisms, the rationale underpinning the introduction of the defence was that duress is ‘insufficiently nuanced’ in cases involving trafficked victims who commit criminal offences (Laird, ibid., 397). The Court of Appeal, in Van Dao [2012] EWCA Crim 1717 at [33], previously declined to extend duress to cover false imprisonment, as M claimed to be the situation in the present case. It is questionable, whether the equivalent common law defence of coercion in Scotland is ‘sufficiently nuanced’ to address genuine cases of trafficked victims compelled to commit offences, where the decision has been made to progress the case. As the High Court explained, similar to the duress defence in E&W, ‘the defence of coercion is normally only open when it is based on a present danger from present threats’ (at [42] citing Thomson v HM Advocate [1983] JC 69). The defence requires an individual to establish that he had acted under an ‘immediate danger of death or serious bodily harm’ (Baron David Hume, Commentaries on the Law of Scotland, Respecting Crimes, vol. I, 4th edn (1844 The Law Society of Scotland 1986 reprint) 53), and the requirements might be difficult for a trafficked victim to meet.
The Scottish Committee considered and rejected the notion of a statutory defence. It argued that a defence would ‘create a requirement that prosecutorial instructions take account of the different landscape that would exist if a defence were on the statute book’ (Scottish Committee, Stage 2 Report on the Human Trafficking and Exploitation (Scotland) Bill, SP Paper 710 21st Meeting, Session 4 (2015) p. 43). The availability of a defence applicable to some, but not all offences, in E&W has resulted in convoluted Crown Prosecution Service (CPS) guidelines (R v MK; R v Gega [2018] Crim 667 at [31]). The CPS guidelines are significantly more complex than the Lord Advocate’s instructions, considered below. The CPS is required to consider whether the defendant is a trafficking victim. The decision of the competent authority (the Home Office or the UK Modern Slavery Human Trafficking Unit, depending on the victim’s immigration status) as to whether the accused is a trafficking victim does not bind the court, although a court will bear its conclusion in mind; it does not follow from the fact that an individual ‘fits the profile’ of a trafficking victim that he is necessarily such a victim (CPS Guidance on Human Trafficking, Smuggling and Slavery, https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery). The exclusion under Sched. 4 also means that the CPS must consider a combination of whether s. 45 or duress might apply depending on the nature of the offence, and whether the offence was committed pre- or post-2015. In all cases, irrespective of whether the defence(s) are likely to apply, the CPS are required to assess whether prosecution is in the public interest.
The Lord Advocate’s Instructions (Scotland)
The Lord Advocate’s instructions, in contrast, are framed in broad terms, which do not exclude any offences, thereby recognising that the list of offences which victims of human trafficking or exploitation may commit is constantly evolving (COPFS, para. 4). The COPFS guidelines are as follows: If there is sufficient evidence that a person…has committed an offence and there is credible and reliable information to support the fact that the person: (a) is a victim of human trafficking or exploitation (b) has been compelled to carry out the offence and (c) the compulsion is directly attributable to being the victim of human trafficking or exploitation, then there is a strong presumption against prosecution of that person for that offence (COPFS, para. 8).
The COPFS guidelines are straightforward to apply, and, unlike s. 45 MSA 2015, which is overly restrictive, have the advantage of being amenable to future developments in trafficking. The COPFS guidelines specify that there is not an ‘exhaustive list’ of the types of offence a victim might commit. Trafficking victims are routinely prosecuted for status-related offences, such as entering illegally, working illegally or engaging in prostitution (A. Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2011) 281; A. Schloenhardt and H. Bowcock, ‘Sex Slaves’ and Shrewd Business Women: The Role of Victim Consent in Trafficking in Persons in Australia’ (2015) 39 Melbourne University Law Review 592). The s. 45 defence does not have broad enough application to excuse all the possible offences a victim may commit to escape, endure or survive the trafficking situation (A. Schloenhardt and R. Markey-Towler, ‘Non-Criminalisation of Victims of Trafficking in Persons—Principles, Promises, and Perspectives’ (2016) 4(1) GroJIL 10, 21). Arguably, given the restrictions in s. 45, E&W could benefit from similar guidelines to those issued in Scotland on prosecutorial discretion.
Notwithstanding the benefits afforded by the more flexible model operating in Scotland, it remains important to evaluate whether the discretionary approach may be too little to signal to victims that they can exit their trafficking situation and freely cooperate with law enforcement agencies without fear. Many victims may feel that they will not be believed and/or that they would face consequences for offences they were compelled to commit should they confide in the authorities (ibid. 33). As M argued, ‘there is ‘no “robust tradition” of independent judicial review of [the Lord Advocate’s] decisions (Hester v Macdonald 1961 SC 370 at 378–379; Chricton v McBain 1961 JC 25 at 28–29; Ross v Lord Advocate 2016 SC 502 at para 75; Stewart v Payne 2017 JC 155). This [is] in contrast to the position in England (R (Corner House Research) v Serious Fraud Office [2009] 1 AC 756 paras 30 and 32)’ (at [23]). It was similarly submitted that a trafficking victim’s status being used in mitigation is not an effective remedy, where a case does proceed to trial, and a plea in bar of trial or the coercion defence is unsuccessful. The prospect of an absolute or conditional discharge is unlikely to remove (or even mitigate) the powerful deterrent of possible prosecution operating against trafficking victims contacting the authorities. The threat of prosecution ‘gives the trafficker one more weapon in his arsenal to entrap his victim into silent compliance’ (L. Hoyano, ‘R. v N: Abuse of Process—Prosecution—Decision to Prosecute’ (2012) Crim LR 958, 963). In addition to a more ‘robust tradition’ of judicial review, the availability of a statutory defence, albeit improved on s. 45 MSA 2015, could provide an additional layer of protection for trafficking victims compelled to commit criminal offences in Scotland. It would also send out a vital message that protection is available to trafficked individuals who have been compelled to commit criminal offences.
The present case highlights that important lessons may be learned in both jurisdictions by consideration of the models operating across the border and through recognition that these frameworks need not be mutually exclusive. It is arguably unsurprising, in light of the advantages found within both approaches, that jurisdictions further afield are considering whether a combination of the models operating across the UK ought to be adopted (Hidden in Plain Sight (2017), at [6.101–6.102]).