Appeal Court, High Court of Justiciary
| Author | Nicola Wake,Sean Mennim |
| DOI | 10.1177/0022018318804357 |
| Published date | 01 October 2018 |
| Date | 01 October 2018 |
| Subject Matter | Case Notes |
Case Note
Appeal Court, High Court
of Justiciary
Does Scotland Require a Defence
Equivalent to s. 45 Modern Slavery Act 2015
(England and Wales)? Quyen Van Phan vHer Majesty’s Advocate
[2018] HCJAC 7
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 respon-
dent, 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 [ce rtain] 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?’
It was submitted on behalf of M, that questions (1) and (2) should be answered in the affirmative or, that
appropriate directions on coercion be outlined.
The Journal of Criminal Law
2018, Vol. 82(5) 373–377
ªThe Author(s) 2018
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