Abstract
Keywords
The present conjoined appeals sought a retrospective review of the decisions to prosecute two victims of human trafficking (‘O’ & ‘N’) on the question of whether it had been in the public interest to prosecute them.
On 6 November 2014, N, a Vietnamese national, was arrested for an offence of producing a controlled drug of class B (cannabis), contrary to s 4 of the Misuse of Drugs Act 1971. N raised his trafficking status at the outset but subsequently pleaded guilty in February 2015. He was sentenced to 16 months’ imprisonment.
On 31 July 2014, O was convicted and sentenced for the offence of conspiracy to control prostitution for gain, contrary to s 53 of the Sexual Offences Act 2003. Unlike N, O did not raise her trafficking status until serving her custodial sentence of 5 years' imprisonment.
N sought permission to appeal against conviction and O sought leave to appeal against conviction and sentence on the grounds that they had been victims of trafficking (VoTs) and that the prosecution ought to have been discontinued or stayed as an abuse of process. Both appellants made an application for an extension of time (EoT) in which to apply for leave to adduce fresh evidence, pursuant to s 23 of the Criminal Appeal Act 1968, in support of their newfound trafficked status. The Court considered the fresh evidence de bene esse.
The question for the Court in both appeals concerned the safety of the conviction, considering: (i) whether there was credible evidence that the applicants fell within the definition of trafficking in the Palermo Protocol and the Trafficking Directive; (ii) whether there was a nexus between the crime committed and the trafficking; and, (iii) whether it was in the public interest to prosecute either N or O.
The court reluctantly confirmed O's VoT status, but explained that this did not establish nexus or compulsion at the relevant time (at [63]). The conviction was safe. The Court found that O’s culpability withstood the finding of her VoT status and the sentence imposed was neither manifestly excessive nor flawed. O’s application for leave to appeal and the application for an EoT were refused accordingly (at [64]–[65]).
Commentary
In a significant departure from the earlier ruling in R v N [2012] EWCA Crim 189, where the court indicated that possession of a mobile phone may be taken as indicative that an individual has not been trafficked, Lady Marcur in the present case opined that the presence of communication technology is not counter-intuitive when establishing VoT status.
The Court's gradual adoption of a more holistic approach in assessing trafficking indicators is laudable in recognising the heterogeneous nature of VOTs. There remains, however, a general reluctance to address those forms of coercion which are less amenable to verification. It is eminently logical that some psychological means of coercion - especially those predicated on abnormal beliefs - may make it more difficult to assess threats and place such threats in their proper context. It is disappointing that the courts have once again failed to give sufficient consideration to the psychological and emotional impact VoTs may experience as a result of their exploitation. This ruling provides further justification for the development of tailored prosecutorial guidance and procedures in trafficking cases (both pre- and post-conviction). Further, it highlights the need for prosecutors (and the courts) to consider a broader range of subtle and less overt trafficking indicators when assessing whether prosecution is in the public interest and the question of compulsion.
Prosecutorial Discretion and the Public Interest: Considerations Prior to Prosecution of Trafficked Victims
Under art 26 of the Council of the European Union on Action against Trafficking in Human Beings 2005 (developing the Palermo protocol of 2000) and art 8 of Directive 2011/36/EU, Member States must ensure that they ‘take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on VoTs for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subject to [trafficking]’ (the ‘non-punishment principle’). While this overriding principle provides for the possibility of non-punishment, this is not tantamount to ‘immunity from prosecution’ (R v N [2012] at [12]; L v M(L) [2011] 1 Cr App R 12 at [13]–[14]).
In accordance with England and Wales' (E&W) wider international obligations, s. 45 of the Modern Slavery Act (MSA) 2015 introduced separate defences (a hybrid of duress by threats and of circumstances) for victims of human trafficking over and under the age of 18 who commit offences. Schedule 4 of the 2015 Act provides a list of 140 offences to which the s. 45 defence does not apply. With regard to adult victims, the section operates where the person performs the criminal act because they were compelled to do so; the compulsion is attributable to slavery or relevant exploitation; and a reasonable person in the same situation as the person and sharing the person's relevant characteristics would have no realistic alternative to doing the act (s. 45(1)). Relevant characteristics to be considered include age, sex, and any physical or mental illness or disability (s. 45(5)). (For further commentary on the statutory defence, see K. Laird, “Evaluating the Relationship Between Section 45 of the Modern Slavery Act 2015 and the Defence of Duress: An Opportunity Missed?” [2016] Crim. L.R. 395).
In the present case, the Court made it clear that the MSA 2015 was not drafted to provide retrospective protection and offered no assistance to N nor O (at [2])(see also, R v Joseph (Verna) [2017] EWCA Crim 36 at [4]). When addressing cases that fall outside the scope of the defence, but where there is a potential nexus between the crime with which they are charged and their status as VoT for the purposes of exploitation, defendants must rely on the regime that has been developed by the courts by way of prosecutorial discretion and the Court’s power to stay a prosecution as an abuse of the process (R v M(L) at [7]).
Despite the Court’s jurisdiction ostensibly providing a robust mechanism in ensuring that the rights of VoTs are protected by overseeing the decision of the prosecutor (see, R v L(C) [2014] 1 All E.R. 113 at [16]), recent cases have demonstrated that it seldom affords sufficient protection against criminalisation. VoTs often have little choice but to rely on ‘a discretionary mercy which might or might not benevolently be bestowed upon them’ by the Crown Prosecution Service (CPS) (B Hoshi, ‘The Trafficking Defence: A Proposed Model for the Non-Criminalisation of Trafficked Persons in International Law’ (2013) 1(2) GroJIL 54, 65). In the present case, it was argued that, in the light of O and N’s newfound VoT status, the Court should quash the convictions as unsafe on the premise that ‘if the full circumstances had been known, the prosecution would not have been commenced/continued’ (at [27], [57]). It is therefore instructive to consider the careful and fact sensitive exercise undertaken by prosecutors when determining whether it was in the public interest to prosecute a VoT.
Victim or Offender? Establishing Nexus and Compulsion in Trafficking Cases
Under the current guidance of the CPS (Human Trafficking, Smuggling and Slavery (2015)), the prosecutor must consider three broad questions on a fact specific basis in each case where the defence of duress does not arise on the evidence: (i) whether there is reason to believe that the person has been trafficked (guidance has been published for investigators on indicators of trafficking and this may also be of help to prosecutors at this stage. See UNODC, Human Trafficking Indicators. Available at: https://www.unodc.org/pdf/HT_indicators_E_LOWRES.pdf); (ii) whether there is clear evidence of a credible common-law defence the case will be discontinued in the ordinary way on evidential grounds; and (iii) where there is no such evidence, but the offence may have been committed as a result of compulsion arising from the trafficking, whether the public interest requires a prosecution. The word ‘compelled’ is not limited to the circumstances in which the English common-law defences of duress/necessity apply (R. v M(L) at [11]). In exercising that discretion, the Court in S(G) [2018] EWCA Crim 1824 (at [75-76]) reiterated that there is no closed list of factors bearing on the prosecutor's discretion to proceed against a VoT.
In respect of N, the rationale for proceeding with the prosecution was based on the assertion that there was a ‘lack of nexus of the offending to the trafficking and the degree of compulsion under which N acted’ (at [31]). The respondents asserted that N had ‘a realistic alternative to the offending’ (at [31]). The factual picture presented was considered counter-intuitive to finding him to be a VoT (at [29]); namely, N was held in unlocked premises, was not constantly supervised, had access to electronic devices (mobile phones), and the internet (at [29]). An overarching thread within the case law is that the courts have considered it entirely cogent to draw inference that a VoTs' access to technology portrays a degree of autonomy, normality, and even an indication of them having not being trafficked (see, for example, R v N [2012]). Elliott and McCarten have highlighted, however, that such assumptions are ‘not only dangerous, but misinformed’ when considered alongside the other ‘subtle and less ostensible coercive practices and mechanisms traffickers use to control their victims’ (J Elliott and K McCartan, ‘The Reality of Trafficked People’s Access to Technology’ (2013) 77(3) J Crim L 255, 266, 269). ‘Indicators of trafficking and slavery’ from the most recent version of the CPS guidance also acknowledge that VoTs may be ‘subjected to violence or threats of violence’ and ‘believe that they cannot leave their work environment’. The corollary is that whilst remaining in an exploitative situation could indicate a willingness to remain there and/or an absence of coercion, there can be many other reasons why N may not have attempted to escape such a situation including, inter alia, his illegal immigration status (at [16]) and ‘fear of immediate reprisals (for self or family) from his traffickers’ (at [34]) (see, Home Office, Victims of modern slavery–Competent authority guidance, version 7.0 (2019) p. 23). When considered holistically, it is understandable given that what might seem realistic to a person of ordinary fortitude might seem fanciful to someone who has been subjected to coercive and controlling behaviour (N Wake, ‘Human Trafficking and Modern Day Slavery: When Victims Kill’ (2017) Crim L R 658, 673).
N’s appeal was allowed (at [35]). The Court considered that there was sufficient nexus and that N had been compelled to act as he had; albeit that the circumstances fell short of duress (at [34]) (for further discussion regarding the limited bounds of duress in trafficking cases, see R v Joseph (Verna) at [28]–[29]). Lady Marcur remarked that ‘there was objective corroboration for the material aspects of his account’ relating to the restriction of N’s autonomy (at [33]) and rejected the respondent’s submission which required N’s ‘isolation by virtue of his inability to communicate in English and his geographical ignorance to be ignored’ (at [34]). Importantly, in a significant departure from earlier authorities, her Ladyship made explicit pronouncement that traffickers who control VoTs means of, and access to, communication in conjunction with threats that they level may mean that even where access to technology is possible, it does not necessarily follow that they will contact the authorities for assistance (at [34]); (Elliott and McCartan, 268). Taken together, it seems that similar cases might be avoided in the future if there were tailored guidance which recognised the heterogeneous nature of VoT and the various methods of coercion utilised by traffickers within the paradigm of forced criminality.
E&W's international obligations are domesticated as the non-statutory administrative guidance (Competent authority guidance noted above) for identifying and supporting all victims of modern slavery. It is concerning that, at the time of writing, the Home Secretary has failed to comply with the statutory duty under the MSA 2015 (s. 49(1)) to issue specific statutory guidance for authorised public authorities to assist them in referring individuals they believe may have been trafficked to a competent authority (‘CA’) (for context, see O & N [2019] at [9]). Given that earlier calls to implement such guidance have went unheeded (Hansard, HC Vol 630, col 512 (26 October 2017) per Sarah Newton MP), a continued resistance is surely justiciable and will inevitably lead to cases similar to N’s being brought in the future (see, for example, K v Secretary of State for the Home Department [2019] 4 WLR 92 at [6] -[7] (Mr Justice Mostyn).
Psychological and Cultural Forms of Compulsion
Unlike N’s case, the Court had no doubt that the offences in O’s case were ‘serious and aggravated’ (at [65]). Addressing the sentencing remarks of the trial judge, the Court noted how O’s victims (‘P’ and ‘A’) were ‘put to work in the most brutal way’ and were, inter alia, ‘coerced to participate in unsafe sexual activity’ with numerous ‘customers’ (at [42]). Notwithstanding the Court’s recognition of the vulnerability of the victims (particularly A, who was under 18-year old), considered alongside the consistent campaign of sexual exploitation and threats (at [62]), it was nevertheless submitted that O’s VoT status had introduced an ‘inevitable grey line’ in determining whether sufficient nexus could be established between a VoT who had removed themselves from trafficking to become a perpetrator (at [56]).
The present case should be considered alongside the recent judgment of the Court of Appeal in R v EK [2018] EWCA Crim 2961, which also involved an application for leave to appeal by a VoT prosecuted for her involvement in a number of offences, including conspiracy to control prostitution for gain. In that case, the offender (K) and her boyfriend and co-accused (S) were involved in a Europe-wide network to traffic women for the purposes of prostitution. K had assisted S by controlling the complainants’ work, including telling them about their appointments and collecting money from them. K’s basis of plea, rejected at a Newton hearing, was that she was a VoT and a prostitute working under the same conditions as the complainants. K was found guilty and sentenced to a total of 30 months’ imprisonment. Subsequently, following a series of convoluted immigration decisions, a ruling by the first-tier tribunal (FTT) held that K was at all times a VoT under the control of S. K made an application for an EoT in which to apply for leave to appeal against conviction and adduce fresh evidence which included medical evidence pertaining to a complex form of post-traumatic stress disorder (PTSD) which ‘could serve to explain what was otherwise inexplicable and flowed from the controlling relationship between K and S’ (at [35]). The Court of Appeal (at [49]), while accepting K’s VoT status, was ‘unable to conclude that the decision to prosecute K was flawed’. The conviction was safe. Lord Justice Gross (at [50]) stated unequivocally that although K’s culpability was reduced, it was not ‘extinguished or so diminished as to cast doubt on the decision to prosecute’. It was, unfortunately, not infrequent that those convicted of criminal offences had been subjected to ‘a malign, sometimes controlling influence’, but K had demonstrated ‘sufficient autonomy’ and had ‘reasonable opportunities to extricate herself’. Her misfortunes as a VoT were properly to be reflected by way of mitigation of sentence. (For further commentary on this case, see S Mennim ‘The Wrong Side of the Line? Trafficking Victims Compelled to Commit Offences and Prosecutorial Discretion’ (2019) 83(2) J Crim L 111–115.)
In contrast, when assessing the element of compulsion in the present case, the Court noted that, prior to her arrival to the UK, O had been subjected to ‘an elaborate juju ritual’ (at [51]). It was submitted that, although there were ‘indicators of free will during the indictment period’, O had no choice but to act due to threats being made against her life and her family’s (at [51], [56]), which were exacerbated by her own ‘fears of reprisals and black magic’ (at [58]).
It is widely recognised that that juju oaths/rituals can play a significant factor in trafficking (see, C (HB) [2014] EWCA Crim 1483. See also, S. Edwards, ‘Coercion and compulsion – re-imagining crimes and defences’ (2016) 12 Crim. L.R. 876, 896; C.S. Baarda, `Human trafficking for sexual exploitation from Nigeria into Western Europe: The role of voodoo rituals in the functioning of a criminal network' (2016) 13(2) European Journal of Criminology 257). When assessing the level and methods of control exercised over the victims, the Court of Appeal in Iyamu [2018] EWCA Crim 2166 considered evidence which highlighted that the juju oaths the victims had taken prior to their arrival in Europe which provided ‘a significant tie to the traffickers’ and ‘operated as an effective form of remote control over them’ (at [12]). Lord Davies noted that the way in which the rituals were conducted left the victims ‘psychologically detained’, ensuring that the victims remained ‘economically trapped’ and ‘bound to secrecy and obedience’ (at [11]).
By parity of reasoning, it is arguable that, even with a degree of agency, O could have also manipulated similar methods in her own way throughout the indictment period, but from a vulnerable position of an increasingly unequal power relation with her own trafficker (V) who was still able to ‘exert influence, even when abroad’ (at [58]) (Baarda, 259).
Despite the Court's previous acknowledgment of vulnerability as a characteristic concomitant to those trafficked by means of juju rituals, the approach taken by the Court in the present case appears somewhat incongruous. Notwithstanding the fact that O did not raise the issue of trafficking until serving her custodial sentence (at [1]), the Court accepted evidence (albeit with some hesitation) as to her status (at [66]) and that she was at one time a prostitute under the control of V (at [51]–[52]); however, in a similar vain to EK, the Court’s considerations coalesced around the fact that there was ‘a significant time interval and geographical distance between her alleged “operator” at the relevant time of the offences’ (at [63]). Her Ladyship (at [63]), while highlighting the lack of nexus, remarked that ‘even if O was a VoT on her arrival in the UK, she was complicit in the trafficking of [others] thereafter, and not by reason of coercion’. O ‘had demonstrated free will in the operation of her “business” as a sex worker’; and ‘an ability to accumulate money and to produce a simple accounting system for the earnings of other prostitutes’ (at [63]). The conviction was deemed safe (at [64]).
It is disappointing that the Court has once again refused to lead the vanguard by adopting a more holistic approach when considering the myriad of ‘subtle and nefarious methods by which traffickers can exert total dominance over trafficked persons’—especially those ‘outside their cultural understanding’ (see, A. Gallagher, The International Law of Human Trafficking (Cambridge University Press 2010) 284; Edwards, 896). It appears that the Court will have to continually grapple with this issue on a case-by-case basis. Given that there are a cavalcade of similar cases reaching the appellate courts, this is certainly not apposite.
Conclusion
As the present ruling demonstrates, the dividing line between victim and offender is often difficult to delineate where there is lack of cogent evidence relating to that victim’s trafficking, especially when the offending was carried out over a prolonged period of time. It is, therefore, imperative that the Home Secretary issues guidance in accordance with the relevant provision of the MSA 2015 and that a fresh appraisal of the current prosecutorial guidelines and procedures is undertaken in both pre- and post-conviction cases. Measures which could be introduced may include prosecutors taking a more active responsibility throughout the life of a case to consider, inter alia, any positive decisions of the CA (and the FTT) than is currently undertaken (see, S(G) at [76]). Further, it would be desirable for any future guidance (both statutory and non-statutory) to be cognisant of the present ruling by acknowledging how technology—as well as more conventional forms of coercion and control—can be effectively utilised by traffickers when facilitating a VoT’s exploitation. It is arguable that prosecutors placing such considerations at the fulcrum of decisions when determining whether it is in the public interest to prosecute would significantly add to the scrutiny that such cases currently receive and avoid making any rights afforded to a VoT appear theoretical or illusory (Gallagher, 279).