Legal Commentary: Prosecuting Trafficked Children
| Author | Nigel Stone |
| DOI | 10.1177/1365480212474736 |
| Published date | 01 April 2013 |
| Date | 01 April 2013 |
474736YJJ13110.1177/1365480212474736Youth JusticeStone
2013
Youth Justice
13(1) 73 –84
Legal Commentary
© The Author(s) 2013
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1365480212474736
Prosecuting Trafficked Children
yjj.sagepub.com
Nigel Stone
Police officers attending London factory premises in April 2009 discovered a large-scale,
well equipped cannabis farm and arrested N., a male of Vietnamese origin who was hiding
there. It was apparent that he had contributed to this Class B controlled drug cultivation at
the lowest tier of culpability, as a humble ‘gardener’.1 Several features of this otherwise
seemingly routine case complicated the prosecution process, including his age and immigra-
tion history. At his initial interview N. claimed to have been born in April 1972 and thus to
be aged 37 but he appeared much younger and subsequently changed his account to birth in
1992. He had entered the United Kingdom illegally, apparently at the initiative of his parents
who had paid a people smuggler to arrange this in the hope that he would enjoy better life
prospects in the UK. He claimed that he had stayed initially with a relative while looking for
work and had been quickly recruited to help cultivate the cannabis, not appreciating at the
time that this would involve him in a criminal enterprise but believing that he would be
assisting in the production of herbal medicine. He worked, ate and slept on site and he
claimed that he was unpaid, though £70 was found on him on arrest. The factory windows
were bricked up and the single entrance door was kept locked and, by his account, guarded.
He said that he had felt too afraid to try to leave, though he acknowledged that he had sub-
temporarily left for a three day period. He claimed that he had returned following a phone
call from his employer/handler because he felt that otherwise his life would be in danger.
Following prosecution for being involved in the production of a controlled drug, N. pleaded
guilty and incurred a custodial sentence − an 18 month detention and training order.
Council of Europe Convention
As subsequently became apparent and central to N.’s appeal against conviction, it was a
real possibility that N. could have been the victim of trafficking, defined by the Council
Corresponding author:
Nigel Stone, School of Social Work and Psychology, Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
74
Youth Justice 13(1)
of Europe Convention (‘the Convention’) on Trafficking in Human Beings 2005 (Council
of Europe, 2005)2 and ratified by the UK in December 2008 as:
… the recruitment, transportation, transfer, harbouring or receipt of persons by means of
threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person, for the pur-
pose of exploitation (Article 4(a)).
Article 4(a) amplifies that definition by adding: ‘Exploitation shall include at a minimum
the exploitation of the prostitution of others or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude …’. Further, Article 10
of the Convention places a positive duty upon Member States to identify and assist vic-
tims, with special regard to the protection of trafficked children. Article 10(1) specifies:
Each Party shall provide its competent authorities with persons who are trained and qualified
in preventing and combating trafficking in human beings, in identifying and helping victims,
including children, and shall ensure that the different authorities collaborate with each other
as well as with relevant support organisations, so that victims can be identified in a procedure
duly taking into account the special situation of women and child victims ….
Recognizing that age may not be readily established, Article 10(3) provides that ‘when the
age of the victim is uncertain and there are reasons to believe that the victim is a child, he
or she shall be presumed to be a child and shall be accorded special protection measures
pending verification of his/her age’.
The Convention applies to trafficking movements within a jurisdiction as well as traf-
ficking across national frontiers, thus serving to protect those who are nationals of the
relevant jurisdiction subjected to intra-territorial trafficking, as well as foreign nationals
who experience transnational trafficking. There is also a clear differentiation to be drawn
between people trafficking and people smuggling. N. had certainly been smuggled into the
UK but it was less apparent that he had been trafficked. Treating persons as commodities
to be exploited commonly involves targeting the vulnerable, including children, and forc-
ing them to work in the sex industry or as toilers in sweat shops or domestic service. As a
consequence victims may become unwillingly implicated in criminal conduct, whether
prostitution, immigration offences, theft (pick-pocketing being a particular possibility) or
drug crime. Anticipating the prospect of double victimization, criminal liability in addi-
tion to exploitation, the Convention (in Article 26, entitled ‘Non-punishment provision’)
requires a ratifying state:
… in accordance with the basic principles of its legal system, (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.
It will be noted that Article 26 addresses in terms the issue of sentencing, not liability to
prosecution. In the latter respect the circumstances of compulsion or coercion may amount
Stone
75
to a common law defence of duress by threat,3 that should prompt the prosecutor to opt
not to proceed against a trafficked accused person on evidential grounds but that is applied
quite restrictively and will not embrace instances of less blatant but nevertheless coercive
pressure. In early guidance on human trafficking issues the Crown Prosecution Service
(CPS) had required prosecutors faced with a ‘credible’ trafficked victim4 – who appeared
convincingly to have committed an offence under coercion short of duress− to consider
whether prosecution would be in the public interest. In the case of trafficked young defen-
dants the guidance identified that such children fall within the ambit of child care legisla-
tion and are more appropriately dealt with by protective safeguarding if their well-being
is at stake.
R v O.: ‘Shameful Circumstances’
The shortfall between principle and practice in this arena was strikingly illustrated in R v
O. [2008] EWCA Crim 2835. In February 2008 O. was detained when seeking to leave the
UK on a ferry for France in possession of a Spanish identity card in the name of a woman
aged 31 to whom she bore no resemblance. Though her command of English was very
limited, making communication with her difficult, she admitted in interview that she had
sought to travel using a false document and claimed to be aged 22. She stated that she was
a Nigerian national who had entered the UK on her own passport but had lost that docu-
ment when her bag was stolen and so had obtained false ID to enable her to see her uncle
in Paris. Though interviewing officers had noted that ‘she appears to be very young and
possibly juvenile’, she was charged with an offence of possessing a false identity card
with the intention of using it as her own, on the assumption that her stated age was correct.
Prior to trial her lawyer was able to establish that she was born in December 1991 (and
thus aged 16) and had come to England with her boyfriend to escape from her father, who
had threatened to kill her if she did not submit to an arranged marriage in Nigeria to a
63-year-old man with five wives. She understood that work would be available to her
when she arrived in the UK so that she could repay her travel debt. Once in the UK she
learned that she was expected to work as a prostitute and had run away to avoid this pros-
pect, hoping that her uncle would offer her safe shelter. Her case also came to the attention
of the...
To continue reading
Request your trial