Human Trafficking in UK Law

If the procedures undertaken by the Secretary of State did not match up to the demands of the Trafficking Directive, that might be persuasive evidence that there had been a breach of the positive investigative obligation under Article 4 ECHR.

Since the UK Government has announced that its policy is to give effect to its obligations under the Trafficking Convention, that has consequences in domestic administrative law. Thus, the Competent Authority should be taken to have intended to protect the victim's rights, combat trafficking and promote international co-operation (the objectives identified in the Convention) and to promote a human rights based approach.

The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.

As we have already explained the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. If so when such cases are prosecuted, an abuse of process submission is likely to succeed.

The convention obligation is to 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. If however this exercise of judgment has not properly been carried out and would or might well have resulted in a decision not to prosecute, then there will be a breach of the convention and hence grounds for a stay.

However, as repeatedly made clear, where crimes have been committed by VOTs, even arising from their own trafficking, there is no blanket immunity. Decisions are necessarily fact sensitive, taking into account the public interest both in prosecuting alleged offenders and in protecting VOTs.

The decision of the competent authority under the NRM process was an essentially factual decision and, for the reasons given, both the FTT and the UT were better placed to decide whether the appellant was the victim of trafficking than was the authority.