L and Others v R The Children's Commissioner for England and Another (Interveners)
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 21 June 2013 |
| Neutral Citation | [2013] EWCA Crim 991 |
| Docket Number | Case No: (1) 2012/01106; (2) 2012/04425; (3) 2012/04763; 2012/04966 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 June 2013 |
[2013] EWCA Crim 991
The Lord Chief Justice of England and Wales
Lord Justice Moses
and
Mrs Justice Thirlwall
Case No: (1) 2012/01106; (2) 2012/04425; (3) 2012/04763; 2012/04966
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) BLACKFRIARS CC; (2) NOTTINGHAM CC; (3) BRISTOL CC; (4) HARROW CC.
(1) HHJ MARRON; (2) HHJ MILMO; (3) HHJ ROACH; (4) HHJ DANGOR
(1) T2011/07118 (2) T2012/0252; T2011/0812; T2009.0438
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss P Chandran for the Defendant L
J Beck for the Defendant HVN
H Blaxland QC and Michelle Brewer for the Defendant THN
Miss P Chandran for the Defendant T
T Owen QC and B Douglas-Jones for the Crown
Miss N Finch for The Children's Commissioner for England
S Knafler QC and SS Luh for the Equality and Human Rights Commission
Hearing dates: 21 – 23 May 2013
Approved Judgment
We have all contributed to this judgment of the court.
In these appeals we are dealing with the problems raised by four otherwise unconnected cases in which three children and one adult who were trafficked by criminals for their own purposes have been prosecuted and convicted. Unfortunately the criminals who trafficked them have escaped justice.
This vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully, and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated and, in the vast majority of cases they are: but not always. For convenience in this judgment we shall refer to the victim as he or him, although as we have made clear, women and girls as well as men and boys are the victims of trafficking.
We understand that the Director of Public Prosecutions is shortly to reconsider his present guidance on the exercise of the prosecutorial discretion in relation to victims of trafficking. The form to be taken by prosecutorial guidance is ultimately his responsibility. Despite suggestions in the submissions to the contrary, the court cannot become involved either in the investigation of the case or the prosecutorial decision whether it is in the public interest for the prosecution to proceed. Nevertheless we propose to offer guidance to courts (not, we emphasise, to the Director of Public Prosecutions) about how the interests of those who are or may be victims of human trafficking, and in particular child victims, who become enmeshed in criminal activities in consequence, should be approached after criminal proceedings against them have begun.
Beyond the individual and specific circumstances involved in each of these separate appeals (which were heard together) we have sought assistance on the broader issues to which the appeals give rise. We have examined the decisions of this court in R v M(L), B(M) and G(D) [2011] 1 Cr. App. R 12 and R v N; R v L [2013] QB 379 in the light of EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, (the EU Directive) which came into effect on 6 April 2013.
Recital 8 of the EU Directive underlines:
"Children are more vulnerable than adults and therefore at greater risk of becoming victims of trafficking in human beings. In the application of this Directive, the child's best interest must be of primary consideration, in accordance with the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child".
Recital 14 provides:
"Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities … that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. The safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in."
Article 8 makes provision for the non-prosecution or the non-application of penalties to the victim so that:
"Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to (trafficking)".
This provision echoes Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (the Anti-Trafficking Convention) which requires the United Kingdom:
"In accordance with the basic principles of its legal system, [to] provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so".
These provisions recognise that different Member States have different legal systems for providing the necessary protection for victims of trafficking, and that this may take the form of non-prosecution or the imposition after prosecution and conviction of what in this jurisdiction would be described as a discharge. Whether absolute or conditional, this order does not constitute a penalty. If it arises, it is the end of the process. That issue, however, is not the problem to which the present appeals give rise: we are concerned with the prosecution and conviction of the appellants rather than the sentences imposed after conviction.
We have had the advantage of detailed written submissions not only from counsel for the appellants and the prosecution, but also from the Children's Commissioner for England and the Equality and Human Rights Commission. For understandable forensic reasons we have been provided with a multiplicity of reports and papers, protocols and conventions in which, using different language to the same effect, the evils of trafficking, and in particular the evils of trafficking and exploiting children, are simultaneously highlighted and condemned. We shall not repeat them in this judgment, but a complete list of this material is annexed to it. In reality, despite lengthy repetition, the principles to be applied are not complicated, and we shall endeavour to encapsulate them in this judgment. Henceforth it will rarely be necessary for them, or even a substantial proportion of them, to be copied and repeated in proceedings where these and similar issues arise.
The abuse to which victims of trafficking are exposed takes many different forms. At some levels it may amount to "slavery", or not far distant from "slavery", "servitude", or "forced or compulsory labour". Activities of this kind are prohibited by Article 4 of the European Convention of Human Rights, and were criminalised in this jurisdiction by the Asylum and Immigration (Treatment of Claimants) Act 2004, the Gang Masters' Licensing Act 2004, and s.71 of the Coroners and Justice Act 2009. With effect from 6 April 2013 two further offences of trafficking people set out in ss.109 and 110 of the Protection of Freedoms Act 2012 have been brought into force. The first of these offences substitutes a new s.59A in the Sexual Offences Act 2003, directed at covering the trafficking of individuals within and outside the United Kingdom with a view to sexual exploitation, and the second substitutes a new s.4(1A) into the Asylum and Immigration (Treatment of Claimants etc) Act 2004 an offence to cover trafficking within and outside the United Kingdom with a view to exploitation, largely directed at exploitation through labour.
We need not further expound the principles. They can be readily found in ( Siliadin v France Application No 73316/01, 26 October 2004); ( Rantsev v Cyprus and Russia Application No 25965/05, 10 January 2010); and R v K(S) [2013] QB 82 and R v Connors [2013] EWCA Crim. 324 where, in effect repeating what had just been said in R v N; R v L [2013] QB 379 at paras [2]-[6], the court observed:
"Every vulnerable victim of exploitation will be protected by the criminal law, … there is no victim, so vulnerable to exploitation, that he or she somehow becomes invisible or unknown to or somehow beyond the protection of the law. Exploitation of fellow human beings … represents deliberate degrading of a fellow human being or human beings".
It is surely elementary that every court, whether a Crown Court or magistrates court, understands the abhorrence with which trafficking in human beings of any age is regarded both in the United Kingdom and throughout the civilised world. It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from...
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