Quyen Van Phan Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Menzies,Lord Justice General |
| Neutral Citation | [2018] HCJAC 7 |
| Court | High Court of Justiciary |
| Date | 11 January 2018 |
| Docket Number | HCA/2017/549/XC |
| Published date | 01 May 2018 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 7
HCA/2017/549/XC
Lord Justice General
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
THE REFERENCE OF A COMPATIBILITY ISSUE TO THE
HIGH COURT OF JUSTICIARY
under section 288ZB(1) of the Criminal Procedure (Scotland) Act 1995
in the cause
QUYEN VAN PHAN
Minuter
against
HER MAJESTY’S ADVOCATE
Respondent
Minuter: O’Neill QC, Mackintosh; PDSO, Glasgow
Respondent: Solicitor General (A Di Rollo QC); the Crown Agent
11 January 2018
Introduction
[1] This is a reference from the sheriff at Glasgow, posing the following questions:
“(1) Is the Human Trafficking and Exploitation (Scotland) Act 2015 incompatible
with Directive 2011/36/EU in the absence of a statutory defence to the effect that the
2
[minuter] 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 the
minuter 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 [certain] 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?”
Legislation
[2] Following upon the prohibition on slavery in the European Convention on Human
Rights, the Palermo Protocol (UN Convention against Transnational Organised Crime
December 2000) had promoted the suppression of human trafficking, especially that
involving women and children, and the need to protect and assist victims. This was
complemented by the EU Framework Decision 2002/629/JHA and the Warsaw Convention
(Council of Europe Convention on Action against Trafficking in Human Beings, May 2005).
Article 26 of the latter provided:
“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.”
The Palermo Protocol and the Warsaw Convention were ratified by the United Kingdom in
2006 and 2008.
[3] Recital 14 of the Directive 2011/36/EU of the European Parliament and Council,
commonly known as the Human Trafficking Directive, states:
“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 such as the use of false documents,
or offences under legislation on prostitution or immigration, that they have been
compelled to commit as a direct consequence of being subject to trafficking.
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