Prosecution and conviction of juvenile victims of human trafficking who were forced to work in drug plantations. Violation of the ECHR. First decision for criminal prosecution and conviction of a victim of human trafficking
JUDGMENT
V.C.L. and Α.Ν. v. United Kingdom 16.02.2021 (app. no. 77587/12 and 74603/12) .
SUMMARY
The case concerned two Vietnamese youths who police officers had discovered working on cannabis
farms. They were arrested and charged with drugs-related offences, to which they pleaded guilty.
Following their conviction they were detained in young offenders’ institutes. A competent authority
subsequently recognised them as victims of trafficking. However, the prosecution service having
reviewed its decision to prosecute them, concluded that they were not victims of trafficking and the
Court of Appeal found on the facts of each case that the decision to prosecute had been justified.
This was the first time the Court had considered the relationship between Article 4 of the
Convention and the prosecution of victims and potential victims of trafficking. It considered that the
prosecution of victims or potential victims of trafficking would not necessarily breach Article 4 of the
Convention.
However, given the competent authority’s expertise in this area, the Court considered
that the prosecution would have needed to present clear reasons consistent with the definition of
trafficking for disagreeing with its findings, something which clearly had not happened in these
cases. However, having regard to the duty to take operational measures to protect victims of
trafficking, the Court held that once the authorities had become aware of a credible suspicion that
an individual had been trafficked, he or she should be assessed by a qualified person. Any decision to
prosecute should follow such an assessment, and while the decision would not necessarily be
binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different
conclusion. In the case of both V.C.L. and A.N., the Court found that despite the existence of credible
suspicion that they had been trafficked, neither the police nor the prosecution service had referred
them to a competent authority for assessment; although both cases were subsequently reviewed by
the prosecution service, it disagreed with the conclusion of the competent authority without giving
clear reasons capable of undermining the competent authority’s conclusions; and the Court of
Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process.
The Court therefore found that there had been a violation of Article 4 in both applicants’ cases.
The Court found that, although the authorities had made some accommodations to the applicants
after their guilty verdicts, the lack of any assessment of whether the applicants had been victims of
trafficking may have prevented them from securing important evidence capable of helping their
defence. As such the proceedings had not been fair, leading to a violation of Article 6 § 1.
PROVISIONS
Article 4
Article 6 par. 1
PRINCIPAL FACTS
The applicants, Mr V.C.L. and Mr A.N., are Vietnamese nationals who were born in 1994 and 1992
and live in Middlesex (UK) and London respectively.
They complained under Articles 4 and 6 of the Convention about their prosecution and conviction
for drug-related offences following their discovery on cannabis farms while they had still been
minors. At the relevant time guidance for both police officers and prosecutors indicated that
Vietnamese minors discovered on cannabis farms were likely to be victims of trafficking. Following
their conviction, both V.C.L. and A.N were recognised as victims of trafficking by the State authorities
(competent authority) responsible for determining whether a person has been trafficked for the
purpose of exploitation.
On 6 May 2009 V.C.L. was discovered by police during a drugs raid in Cambridge. During his police
interview, the applicant stated that he was 15 years old and had been smuggled into the UK by his
adoptive father. He had been met by two men who had taken him to the cannabis farm and put him
to work there. He was charged with production of a controlled drug following the raid.
The courts assessed his age as 17 (although it was later accepted that he had in fact been 15).
Although concerns had been raised by social services and an NGO that he might have been a victim
of trafficking, on 20 August 2009 he pleaded guilty to production of drugs. He was sentenced to 20
months in a young offenders’ institution.
On 21 April 2009 the police entered residence in London following reports of a burglary. They
discovered there a large cannabis farm, along with A.N. and several other Vietnamese nationals.
During a police interview he gave his year of birth as 1972 (it is, in fact, 1992, a fact which was later
accepted by the courts). He stated that after arriving in the UK he had met some Vietnamese people
who had looked after him. He had been taken to the cannabis farm where he had been put to work
without pay.
A.N. was charged with production of a controlled drug, and on the advice of his lawyer he pleaded
guilty in July 2009. He was given an 18-month detention and training order.
Later, a social worker from the National Society for the Prevention of Cruelty to Children – National
Child Trafficking Advice and Information Line considered that there was strong evidence that A.N.
had been a victim of child trafficking, connected to his forced labour and confinement in the
cannabis farm.
Both applicants were granted permission to appeal out of time. They argued, among other things,
that as victims of human trafficking they should not have been prosecuted. On 20 February 2012,
the Court of Appeal found that victims of trafficking did not automatically acquire immunity from
prosecution. In any case, it reasoned that the UK’s obligation under international law to provide for
the possibility of not punishing victims of trafficking could be achieved by prosecutors exercising
their discretion not to prosecute in appropriate cases. This would require a judgment to be made by
the prosecutor based on all the available evidence. The applicants’ appeals were dismissed because
in each case the court found that the decision to prosecute had been amply justified and had not
been an abuse of process. V.C.L.’s sentence was however reduced to 12 months’ detention and
A.N.’s to a four-month detention and training order.
The applicants were refused leave to appeal to the Supreme Court. A second appeal by V.C.L. was
also unsuccessful, with the Court of Appeal stating that “the decision to prosecute [had been] amply
justified”.
Relying on Articles 4 (prohibition of forced labour) and 6 § 1 (right to a fair trial), the applicants
complained, in the main, of a failure on the part of the authorities to protect them in the aftermath
of their trafficking, that the authorities had failed to conduct an adequate investigation into their
trafficking (V.C.L.), and of the fairness of their trial.
THE DECISION OF THE COURT…
Article 4
The Court noted that to date it had not had the opportunity to examine a case of a possible victim of
trafficking who had then been prosecuted. It stated that the relevant international treaties did not
provide immunity from prosecution, although States were within their rights not to prosecute where
forced criminal activity – identified early if possible – was apparent. Nevertheless, the Court
considered that the prosecution of potential victims of trafficking might be at odds with the State’s
duty to take operational measures to protect them where there was a credible suspicion that an
individual had been trafficked. Once the authorities had become aware of such a suspicion, the
individual should be properly assessed by a properly qualified person qualified. A decision to
prosecute should only follow such an assessment, especially where an individual was a minor, and a
prosecutor would need clear reasons consistent with international law to disagree with the
assessment.
Mr V.C.L. had been discovered at a raid on a cannabis farm while he had still been a minor. Although
A.N. had initially claimed to be 37, a little over one week after his arrest it had been accepted that he
had been 17. For the Court, the fact that the applicants had been discovered on cannabis farms
while still minors should by itself have given rise to a credible suspicion that they had been victims of
trafficking. However, instead of referring them to the body responsible they had been charged with
criminal offences and allowed to plead guilty. The prosecution services subsequently reviewed their
decisions to prosecute and found that they had been justified as the applicants had not been victims
of trafficking. In the Court’s view, however the prosecution had not given clear reasons consistent
with the definition of trafficking for reaching a different conclusion to that of the competent
authority.
Although their cases had subsequently been considered by the Court of Appeal (twice, in the case of
V.C.L.), the Court noted that its review had been limited to a consideration of whether the
prosecution had been an abuse of process. Moreover, in finding that the decision to prosecute had
been justified, the court, like the prosecution service, had relied on factors which did not appear to
go to the core of the internationally accepted definition of trafficking.
In sum, the Court found that the authorities had failed to take adequate operational measures to
protect V.C.L. and A.N., both of whom had been potential victims of trafficking.
Article 6 § 1
The Court reiterated that it had to determine whether the failure to recognise the applicants as
potential victims of trafficking raised issues under the Convention, whether the applicants had
waived their rights, and whether the proceedings as a whole had been fair.
The Court found that although the applicants’ pleas had been unequivocal, in the absence of an
assessment of whether they had been trafficked, those pleas had not been made “in full awareness
of the facts”. The Court therefore concluded that they had not waived their rights under Article 6.
Although the authorities had made some accommodations to the applicants after their guilty
verdicts, the Court nevertheless found that the lack of an assessment as to whether the applicants
had been victims of trafficking had potentially prevented them from securing evidence which might
have helped their defence. Furthermore, the Court did not consider that this “unfairness” had been
cured on appeal since – as already noted – the Court of Appeal’s review had been limited to a
consideration of whether the prosecution had been an abuse of process, and it had relied on factors
which did not appear to go to the core of the internationally accepted definition of trafficking.
As such the proceedings had not been fair, leading to a violation of Article 6 § 1.
Just satisfaction (Article 41)
The Court held that the United Kingdom was to pay the applicants 25,000 euros (EUR) each in
respect of non-pecuniary damage, and EUR 20,000 each in respect of costs and expenses.
Separate opinion
Judge Motoc expressed a concurring opinion, which is annexed to the judgment.
