Phan v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 11 January 2018 |
| Neutral Citation | [2018] HCJAC 7 |
| Date | 11 January 2018 |
| Court | High Court of Justiciary |
| Docket Number | No 19 |
[2018] HCJAC 7
Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull
Advocate (HM) v V [2016] HCJAC 103; 2017 SCCR 7; 2017 SCL 29; 2016 GWD 37–663
Berlioz Investment Fund SA v Director of the Direct Taxation Administration, Luxembourg (C-682/15) EU:C:2017:373; [2018] 1 CMLR 1; [2017] BTC 15
Butt v Scottish Ministers [2012] HCJAC 107; 2013 JC 274; 2012 SLT 1066; 2012 SCCR 649; 2012 SCL 970
Finanmadrid EFC SA v Zambrano (C-49/14) EU:C:2016:98; [2016] 3 CMLR 3; [2016] CEC 1387
Hester v Macdonald 1961 SC 370; 1961 SLT 414
Kamberaj v Istituto per l'Edilizia Sociale della Provincia Autonoma di Bolzano (IPES) (C-571/10) EU:C:2012:233; [2012] 2 CMLR 43; [2013] All ER (EC) 125
Lin v HM Advocate [2007] HCJAC 62; 2008 JC 142; 2008 SCCR 16; 2008 SCL 251; 2007 GWD 35–591
McBain v Crichton 1961 JC 25; 1961 SLT 209
Opinion 2/13 (C-2/13) EU:C:2014:2454 CJEU, 18 December 2014, unreported
Paterson v HM Advocate [2008] HCJAC 2; 2008 JC 230; 2008 SCCR 582; 2008 SCL 572
Puskar v Slovakia (C-73/16) EU:C:2017:253; 30 March 2017, unreported
R v Joseph [2017] EWCA Crim 36; [2017] 1 WLR 3153; [2017] 1 Cr App R 33; [2017] Crim. LR 817
R v L [2013] EWCA Crim 991; [2014] 1 All ER 113; [2013] 2 Cr App R 23; [2014] Crim LR 150
R v M [2010] EWCA Crim 2327; [2011] 1 Cr App R 12; [2011] Crim LR 425
R (on the application of A (A Child)) v Secretary of State for Health [2017] UKSC 41; [2017] 1 WLR 2492; [2017] 4 All ER 353; [2017] HRLR 9; [2017] Med LR 347; (2017) 156 BMLR 1
R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324; [2014] 2 All ER 109; [2014] PTSR 182
R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756; [2008] 3 WLR 568; [2008] 4 All ER 927; [2008] Lloyd's Rep FC 537; [2009] Crim LR 46
R (on the application of Horvath) v Secretary of State for the Environment, Food and Rural Affairs (C-428/07) EU:C:2009:458; [2009] ECR I-6355; [2009] 30 EG 66 (CS)
R (on the application of McNiece) v Criminal Injuries Compensation Authority [2017] EWHC 2 (Admin)
R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2017] NI 141; [2018] AC 61; [2017] 2 WLR 583; [2017] 1 All ER 593; [2017] 2 CMLR 15; [2017] HRLR 2
Ross v HM Advocate [2015] HCJAC 38; 2015 JC 271; 2015 SLT 325; 2015 SCCR 237
Ross v Lord Advocate [2016] CSIH 12; 2016 SC 502; 2016 SCCR 176; 2016 SCLR 764; 2016 GWD 8–155; 149 BMLR 54
Stewart v Payne [2016] HCJAC 122; 2017 JC 155; 2017 SLT 159; 2017 SCCR 56; 2017 SCL 263
Stuurman v HM Advocate 1980 JC 111; 1980 SLT (Notes) 95
Thomson v HM Advocate 1983 JC 69; 1983 SLT 682; 1983 SCCR 368
Van Dao v R [2012] EWCA Crim 1717; [2013] Crim LR 234
W v Sanofi Pasteur MSD SNC (C-621/15) EU:C:2017:484; [2018] 1 CMLR 16; [2017] 4 WLR 171; [2018] CEC 331; (2017) 158 BMLR 16
X v Belgium (C-638/16 PPU) EU:C:2017:173; [2017] 3 CMLR 15; [2017] 4 WLR 89; [2017] CEC 1239
Council of Europe, Convention on Action against Trafficking in Human Beings (‘the Warsaw Convention’) (CETS 197) (Council of Europe, Strasbourg, May 2005), Art 26 (Online: https://rm.coe.int/168008371d (17 May 2018))
Crown Office and Procurator Fiscal Service, Prosecution Code (CP/AY/6)) (Crown Office, Edinburgh, May 2001), p 6 (Online: http://www.copfs.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final20180412_1.pdf (17 May 2018))
Group of Experts on Action against Trafficking in Human Beings, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom — Second Evaluation Round (GRETA(2016)21) (Council of Europe, Strasbourg, October 2016), (Online: https://rm.coe.int/16806a99b1 (17 May 2018))
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 53
Independent Anti-slavery Commissioner, Combating Modern Slavery experienced by Vietnamese Nationals en route to, and within, the UK (HMSO, London, September 2017), para 4.2.2 (Online: http://www.antislaverycommissioner.co.uk/media/1159/iasc-report-combating-modern-slavery-experience-by-vietname-nationals-en-route-to-and-within-the-uk.pdf (16 May 2018))
Lord Justice-Clerk (Carloway), Criminal Courts Practice Note no 3 of 2015: Sheriff Court Solemn Procedure (Scottish Courts and Tribunals Service, Edinburgh, February 2015) (Online: https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts-pn-no3-of-2015.pdf?sfvrsn=24 (16 May 2018))
Scottish Government, Human Trafficking and Exploitation (Scotland) Bill: Policy memorandum (SP Bill 57–PM) (Scottish Parliament, Edinburgh, December 2014), para 52 (Online: http://www.parliament.scot/S4_Bills/Human%20Trafficking%20Bill/b57s4-introd-pm.pdf (16 May 2018))
United Nations Office on Drugs and Crime, United Nations Convention against Transnational Organized Crime and the Protocols Thereto (‘the Palermo Convention/Protocol’) (UNODC, Vienna, September 2004) (Online: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf) (17 May 2018))
Justiciary — Review — Compatibility issue — Minuter claiming to have been compelled to commit offences in consequence of being victim of human trafficking — Whether absence of statutory defence incompatible with Directive 2011/36/EU — Whether continued prosecution incompatible with Directive 2011/36/EU and Art 47 of the Charter of Fundamental Rights of the European Union (C326/391) — Charter of Fundamental Rights of the European Union, Art 47 — Directive 2011/36/EU, Art 8 — Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12)
Quyen Van Phan was indicted in the sheriff court at Glasgow at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on, inter alia, charges contrary to the Misuse of Drugs Act 1971. The case was indicted for a first diet on 3 August 2016, with a trial diet on 22 August. The minuter pled not guilty and lodged a compatibility minute which, following a number of adjournments in the cause, was argued before the sheriff on 10 July 2017. The sheriff referred the issue to the High Court of Justiciary for determination.
Section 8 of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12) (‘the 2015 Act’) provides, inter alia, “(1) The Lord Advocate must issue and publish instructions about the prosecution of a person who is, or appears to be, the victim of an offence– (a) of human trafficking … (2) The instructions must in particular include factors to be taken into account or steps to be taken by the prosecutor when deciding whether to prosecute a person in the circumstances mentioned in subsections (3) … (3) The circumstances are where– (a) an adult does an act which constitutes an offence because the adult had been compelled to do so, and (b) the compulsion appears to be directly attributable to the adult being a victim of an offence mentioned in subsection (1).”
Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (CETS 197) provides, “Each Party shall, in accordance with the basic principles of its legal system, 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.”
Article 2 of Directive 2011/36/EU of the European Parliament and Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA ([2011] OJ L101/1) (‘the Directive’) provides, “(1) Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of 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 purpose of exploitation”. Article 8 provides, “(1) 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 in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.”
Article 47 of the Charter of Fundamental Rights of the European Union (C326/391) (‘the Charter’) provides, “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing … by an independent and impartial tribunal”.
On 26 April 2016, the minuter was found in a flat in Glasgow and was arrested and charged on the basis that the premises were being used to cultivate cannabis. During his police interview, the minuter gave an account of having been a victim of human trafficking, having been trafficked from Vietnam to Scotland via Russia and France, and having been locked in the flat in Glasgow by his abductors and told to look after the cannabis plants. A Home Office investigation concluded that the minuter had not been trafficked. The minuter was, thereafter, indicted in the sheriff court on charges under the Misuse of Drugs Act 1971 (cap 38).
The minuter challenged the compatibility of his prosecution with EU law, and in particular the Directive, because he could not plead as a...
To continue reading
Request your trial
-
Reclaiming Motion Thomas Sheridan Against The Scottish Criminal Cases Review Commission
...and thus sustain a plea in bar of trial, where it is demonstrated that the accused cannot obtain a fair trial (Phan v HM Advocate 2018 JC 195, LJG (Carloway), delivering the opinion of the court, at para [40]). The actions of the Crown do not come close to the situation where such a plea mi......
-
Appeal Against Sentence By Hai Van Le Also Know As Trung Dung Le Against Her Majesty's Advocate
...appropriate sentence.” The ground of appeal also makes reference to the decision of the Appeal Court in Quyen Van Phan v HM Advocate, 2018 JC 195 at paras [44] and [45]. [7] In her report the sheriff responds to this ground of appeal as follows: “[23] In relation to the first ground, I was ......
-
Appeal Court, High Court of Justiciary
...Scotland Require a DefenceEquivalent to s. 45 Modern Slavery Act 2015(England and Wales)? Quyen Van Phan vHer Majesty’s Advocate[2018] HCJAC 7On 26 April 2016, a Vietnamese male (M) was discovered in a flat which was being used for cannabiscultivation. M was arrested and indicted on charges......
-
Criminal Responsibility of Trafficked Persons
...Does Scotland Require a Defence Equivalent to s. 45 Modern Slavery Act 2015 (England and Wales)? Quyen Van Phan v Her Majesty’s Advocate [2018] HCJAC 7’ (2018) 82(5) The Journal of Criminal Law 373. [2019] Irish Judicial Studies Journal Vol 3(2) Scotland 53 IRISH JUDICIAL STUDIES JOURNAL pr......