Child Criminal Exploitation: ‘County Lines’,Trafficking and Cuckooing

Exploitation of Children via ‘County Lines’

This prosecution offers an instructive illustration of a relatively new or previously less well-acknowledged dimension of drug trafficking crime, widely referred to as ‘county lines’ (for a fuller account, see CPS, 2018b; House of Commons Library, 2018; Hudek, 2018a; National Crime Agency, 2017). Broadly put, this encompasses the initiatives of suppliers based in larger cities, usually operating as part of an organised crime collective, gang or network, to expand their trade into smaller provincial/coastal locations, to increase profitability and in hope of avoiding or reducing police attention in their own area. They aim to establish fresh demand or, more commonly, seek to take control of the local market in the targeted area, by securing temporary premises in the new area. They latch onto a local dealer who is ill-placed to resist them and take over his network, and/or onto a local user, using his or her address as a base for their operations (a practice that has become known as ‘cuckooing’). Sometimes a ‘manager’ will be placed in the local area to run operations. Commonly, large quantities of the drug(s) will not be maintained in the provincial centre, but high-frequency deliveries of mid-market quantities will be sent from the metropolitan base.

In achieving their ends, ambitious city-based dealers resort to various manipulative means involving pressure, influence or reward, but underpinned by intimidation, threat or actual violence. Unsurprisingly, these suppliers frequently seek to use young persons and/or vulnerable adults as remote-controlled commodities for the purpose, particularly where those so used are unconvicted and thus more likely to evade police notice. In the past year, a raft of publications have sought to alert criminal justice and child welfare authorities to the risks posed to children and young persons in this context (Children’s Society, 2018; Home Office, 2018a; Hudek, 2018b; Youth Justice Legal Centre (YJLC), 2018a). As helpfully and tellingly outlined in the latter alert:

Gangs are deliberately targeting vulnerable children – those who are homeless, living in care homes or trapped in poverty. These children are unsafe, unloved, or unable to cope, and the gangs take advantage of this. These gangs groom, threaten or trick children into trafficking their drugs for them. They might threaten a young person physically, or they might threaten the young person’s family members. The gangs might also offer something in return for the young person’s cooperation – it could be money, food, alcohol, clothes and jewellery, or improved status – but the giving of these gifts will usually be manipulated so that the child feels they are in debt to their exploiter. However they become trapped in county lines, the young people involved feel as if they have no choice but to continue doing what the gangs want.

It is not clear from reportage of the Lincoln case what means M. had used to control or influence the youngsters, other than by providing them with (decidedly sub-standard and deprivative) accommodation and a work role away from their local area at a time when they appear to have been disaffectedly disconnected from their families and education. It is also not apparent whether the children had any known criminal history.

The 2015 Act seeks to protect against more extreme forms of criminal exploitation through servitude and trafficking which prominently can include sexual exploitation where a child’s victimisation will be strikingly stark. Particular considerations apply where the exploited person has acted in a way that constitutes a criminal offence, as is likely in instances where they have been used in drug supply. There is no indication that the Lincoln children were considered for prosecution for their part in that enterprise and the Act makes specific provision in s.45 for a ‘defence for slavery or trafficking victims who commit an offence’, subsection 4 stating in respect of children:

A person is not guilty of an offence if -

Schedule 4 of the Act designates numerous offences to which the s.45 defence does not apply, including the calendar of crime involving homicide, serious violence and sexual harm, robbery and aggravated burglary, child cruelty, harassment and racially or religiously aggravated assault. Offences under the Misuse of Drugs Act 1971 are not within that list of exceptions.

In contrast to the application of this defence to adult suspects (s.45(1)), it is not material whether or not a child was compelled to commit the offence (see R v Joseph and Others [2017] EWCA Crim 36 ⁵ ). The youthful defendant needs to adduce evidence sufficient to raise the issue of whether he was a victim of trafficking or slavery and, if this is not accepted, it will then be for the prosecution to prove beyond reasonable doubt that he was not a victim (see R v MK and Gega [2018] EWCA Crim 667).

Pre-MSA Exploitation of Trafficked Children

Child exploitation in drug crime pre-dates both MSA 2015 and the county lines phenomenon and a previous Commentary (Stone, 2013) addressed issues posed where children have been trafficked into the United Kingdom to be used as gardeners to cultivate cannabis on an industrial scale. In the instance of R v N. [2012] EWCA Crim 189; [2013] QB 379, the conviction of N. who claimed to be 17 and to have been trafficked from Vietnam was upheld in light of doubts whether he had been trafficked as opposed to being simply smuggled into the United Kingdom and whether his freedom of movement and autonomy had been as restricted as he had claimed. An immediate custodial sentence was upheld as justified in principle, though the term was reduced to reflect his age, circumstances, the brevity of his involvement and the lowly nature of his role in the offence.

In a subsequent judgement dealing with several unrelated cases linked by trafficking issues (R v L. and Others [2013] EWCA Crim 991; [2013] 2 Cr App R 23), the Court of Appeal referred to ‘the abhorrence with which trafficking in human beings of any age is regarded’, though observing that a trafficked individual should not be given ‘some kind of immunity from prosecution’ for that reason alone. However, the Court recognised that the culpability of any victim of trafficking may be substantially diminished and in some cases effectively extinguished ‘because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals’. In three instances, the convictions of three internationally trafficked juveniles were quashed, notwithstanding their original guilty pleas, in light of further evidence of their experiences and status.

The issue was further considered in R v Joseph and Others (see above) in which (in the instance of R v N., where a boy originating from Vietnam had been arrested at age nearly 16 at a cannabis ‘farm’) the Court of Appeal eventually found ‘sufficient nexus’ between him being trafficked for the purposes of exploitation and the offence of producing a controlled drug (the issue of whether he had been under ‘compulsion’ being deemed not an essential consideration). Since his conviction in 2005 following guilty plea and imposition of 15 months young offender detention (on the basis that he was aged 19), his true age had been established and a First Tier Immigration and Asylum Tribunal had been satisfied that he was the victim of trafficking via China and had been subjected to debt bondage. ⁶ N.’s conviction was quashed but establishing the facts in international cases can clearly take considerable time.

County Lines: R v Limby

In this context where grey areas can abound, it is instructive to consider the approach of the Court of Appeal in a recent post-MSA judgement (reported as R v Ajayi [2018] 2 Cr. App. (S.) 1), involving two unrelated appeals involving drug supply which gave the Court the opportunity to give county lines practices authoritative consideration for the first time, bearing in mind that these practices have become such a feature of the supplying landscape since the publication of the relevant Definitive Guideline (Sentencing Council, 2012).

One of the two appellants, L. from London, had been aged 17 when police investigating drug dealing found him and another young person of the same age at an address in Portsmouth, a south coast city with which neither of them had any connection, holding wholesale quantities of heroin and cocaine and a large sum of money. He pleaded guilty to two counts of possessing Class A drugs with intent to supply, on the basis (unchallenged by the prosecution) that he had been driven to Portsmouth because he owed money to an older person (‘someone I could not say no to’, whom he considered it prudent not to name) who had required him to stay at the house and follow instructions, in essence by caretaking drugs and cash. L. would not have expected to receive any reward for his role, other than reducing his debt. The Appeal Court considered him a typical county lines instance where a metropolitan handler has drafted in a youngster to act as ‘cuckoo’, ‘with sufficient supplies to make inroads into local networks’.

L. had what the Appeal Court described as a ‘significant record’ of prior convictions, accumulated in the preceding 4 years, including an instance of robbery, two assaults, Class B drug possession and weapon possession, together with breaches of a criminal behaviour order. ⁷ He told the probation officer preparing his pre-sentence report (PSR) that he had been involved in gang activity, as part of which he been deemed responsible for losing gang property worth £2000 and hence his debt. In addition, at age 16 he had had acid thrown in his face as part of gang conflict and had been blinded permanently in one eye. As a consequence, he suffered from post-traumatic stress disorder (PTSD) for which he had received regular counselling. The PSR had expressed concern that L.’s mental health appeared to have declined and proposed imposition of a youth rehabilitation order (YRO), ⁸ notwithstanding his failure to comply with a previous YRO.

By the point when L.’s appeal was heard against a 24-month detention and training order, ⁹ he had been the subject of various allegations of breach of custodial discipline, for assaults and for possession of a sharpened plastic knife, but his behaviour appeared to have improved and he had been working with the health team to address his mental health problems. It was argued on his behalf that insufficient regard had been paid to the PTSD diagnosis, his mental health difficulties and his vulnerability generally.

Although the Definitive Guideline applies only to offenders aged 18 and older, the Court of Appeal referred itself to the coverage of offences of possession with intent to supply, determining that L. fell most appropriately within Category 3 of ‘harm’, that is ‘street dealing’ directly to users. As regards his culpability, the sentencing judge had assessed him to have fulfilled a ‘significant role’, that is, less than a ‘leading role’ but greater than a ‘lesser role’ (given that L. had fulfilled ‘an operational or management function within a chain’). On that basis, the Guideline indicates in respect of an adult on conviction involving a Class A drug following contested trial a starting point of 54 months imprisonment and a range between 42 months and 7 years. Having regard to L.’s age and given that his offending had clearly been ‘at the behest of someone else operating within a gang context’ with ‘the hallmarks of pressure or coercion’, the Appeal Court doubted whether he had played a ‘significant role’ and considered it more appropriate to bracket him under ‘lesser role’ but ‘with upward movement to reflect [his] previous criminal record and also the fact that his involvement in this matter arose from his own clearly criminal associations’. On that basis, the appropriate sentence for an adult would have been 4 years’ imprisonment. With full credit for his guilty plea and other mitigation (identified as his youth and his ‘mental difficulties’), a sentence of 2 years’ detention had not been manifestly excessive and his application was refused.

The Court did not refer to the relevance either of MSA 2015 or the Definitive Guideline on Sentencing Youths (Sentencing Guidelines Council (SGC), 2009) then still applicable. ¹⁰ A guideline-derived, mechanistically arithmetic dissection of the sentence can be pursued as follows:

Concluding Overview

It will be apparent that though MSA 2015 can offer valuable protection to children who are exploited for drug distribution purposes, that protection is more likely to apply in instances such as the Lincoln case where the police are able to focus on the perpetrator and the child is readily identifiable as victim. Statutory protection is less likely to feature (as in instances like Limby) where the child is ‘very nearly an adult’ (see Note 6), has a significant criminal history, where their handler is not in the frame and where the child declines to name him or her. The CPS’ (2018c) current guidance states,

Where it is found that the child committed an offence as a direct result of their situation, prosecutors should follow the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery and consider the statutory defence for slavery or trafficking victims. … Victims should be referred through the NRM ¹² to establish their trafficking status.

The guidance cross-references to CPS (2011) which in turn states,

If a child is identified by police during operations, the [local authority] Children’s Services will be notified immediately so that a child protection plan can be put into place and a strategy discussion co-ordinated. Children’s Services are responsible for accommodating the child and will action a section 47 ¹³ investigation at the appropriate time.

There is nothing to suggest in Limby that any s.47 notification or inquiry was pursued, that the boy concerned was referred under the National Referral Mechanism (NRM) or that a s.45 defence was considered. It may be noted that L. would not have been able to pursue a common law defence based on duress in that he would be considered to have ‘voluntarily exposed himself’ to or to have voluntarily joined in the kind of associations that predictably led to the pressures or compulsion he experienced: R v Fitzpatrick [1977] N.I.L.R. 20 (involving pressures stemming from choosing to affiliate to a paramilitary organisation in Northern Ireland); R v Sharp [1987] 1 QB 353 (illustrating the alarming pressures arising from elective involvement in a conspiracy to commit robberies).

Given that human trafficking perpetrators are so willing to exploit children and/or are, like M. in the Lincoln case, not long past childhood themselves, it is unsurprising that the police will wish to use children to obtain information and intelligence on those involved in organised drug crime. Such practices are governed by Part 2 of the Regulation of Investigatory Powers Act (RIPA) 2000, regulating the use of ‘Covert Human Intelligence Sources’ (CHIS). ¹⁴ Use of RIPA in respect of children is the subject of associated secondary legislation, The Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000 No. 2793), making particular provision for the authorisation of children aged under 16 for CHIS purposes, in that this younger age group should not be deployed to gather information about their parents or guardians (paragraph 3) and that an ‘appropriate adult’ (a safeguarding provision applying to all child suspects in police custody) should be present when the investigating authority has any meeting with a child (paragraph 4). In respect of all children, the 2000 Order specified that the time period for which a child could be authorised to act as a CHIS was limited to 1 month, whereas for adults the period is 12 months (paragraph 6). However, The Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (S.I. 2018 No. 715, coming into force from 20 July 2018) has extended that limit to 4 months.

The accompanying Code of Practice (Home Office, 2018b) states that authorisation should be subject to at least monthly review. The Code further refers to safeguards relating to the use of ‘vulnerable individuals’, ¹⁵ stating that ‘they should only be authorised to act as a CHIS in the most exceptional circumstances’. Expanded use of children for CHIS purposes has attracted criticism (YJLC, 2018b) that children in this context are not regarded as intrinsically vulnerable, are not afforded the same protections as child suspects and, most crucially, are being exposed to the clear danger of being exposed and subjected to reprisals. The campaigning organisation Just for Kids Law is currently seeking to pursue judicial review of Home Office policy on use of children for CHIS purposes, arguing that it breaches the government’s international obligations to promote children’s rights and that guidance should ensure that a child’s welfare is considered when they are recruited, that proper risk assessments are carried out and that children are used in only the most exceptional of circumstances with appropriate safeguards. ¹⁶