R v B (M) & Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 21 October 2010 |
| Neutral Citation | [2010] EWCA Crim 2327 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2O1002367 B2 201002369 B2 200905815 B1 200905493 C4 T20087696 T20077100 T20077423 |
| Date | 21 October 2010 |
[2010] EWCA Crim 2327
His Honour Judge Hammond His Honour Judge Price
Mr Recorder Gerald
Before: Lord Justice Hughes Vice President of the Court of Appeal Criminal Division
Mr Justice Owen and Mrs Justice Thirlwall Dbe
Case No: 2O1002367
B2 201002368
B2 201002369
B2 200905815
B1 200905493 C4
T20087696 T20077100 T20077423
IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT LEWES CROWNCOURT SOUTHWARK CROWN COURT
Mr C H Blaxland QC and Miss M Brewer (instructed by Registrar of Criminal Appeals) for the Appellants LM, DG & MB
Mr J Lamb (instructed by Registrar of Criminal Appeals) for the Appellants Tabot and Tijani
Mr P Wright QC and Mr T J Storrie (instructed by The Crown Prosecution Service for the Crown
Hearing dates: 6 th October 2010
Approved Judgment
NOTE: There must be no reporting of the first three appellants’ names: s 1 Sexual Offences (Amendment) Act 1992.
Lord Justice Hughes:
The five cases before us have in common the assertion that the defendants were, or had been, victims of people trafficking. They have provided the opportunity to consider the obligations of this country under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197), parts of the substantive criminal law which may be in issue, and the impact of particular guidelines for prosecutors which have been promulgated as a result of the convention.
There is no doubt that trafficking people is a signally unpleasant crime, although sadly it is by no means alone in the criminal calendar in justifying that description. Because it is often (but not always) conducted across international borders, it is particularly appropriate for inter-state agreement as to steps to be taken to attempt to deal with it. Rantsev v Cyprus and Russia (Application 25965/04) in the European Court of Human Rights, demonstrates that trafficking may fall within the scope of the prohibition on servitude contained in Article 4 of the ECHR. But the principal current international instrument, which contains specific and positive obligations upon States, is the 2005 Council of Europe Treaty. Its provisions, agreed between States, cover (1) steps to prevent and combat trafficking, (2) measures to protect the rights of victims and assist them and (3) the promotion of international co-operation. The United Kingdom is bound by this treaty. At the time of R v O [2008] EWCA Crim. 2835, it had signed but not ratified the treaty and was thus subject to the attenuated obligation under Article 18 of the Vienna Convention on the Law of Treaties to refrain from acts which would defeat its object and purpose. Now, however, this country has ratified the Convention (on 17 December 2008) and it is fully bound by it.
The commonplace use of the expression trafficking is probably the transportation of people across boundaries. But under this convention, trafficking is somewhat differently defined. For the purposes of the convention trafficking does not include those who provide the frequently unpleasant service of assisting voluntary illegal immigration, often at exorbitant charges. As a result the various guidelines helpfully distinguish between this kind of offence, for which they use the convenient non-statutory term “smuggling” and, on the other hand, “trafficking” in the sense used by the convention. The key to the definition of trafficking under the convention is that the act is done for the purpose of exploitation. If that is the purpose, and there is the necessary element of compulsion, fraud, abuse of power or similar means, then trafficking extends beyond transportation. Article 4 provides:
“For the purposes of this convention—
(a) trafficking in human beings shall mean the recruitment, transportation, transfer, harbouring or receipt of 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. 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 or the removal of organs;
(b) the consent of a victim of trafficking in human beings to the intended exploitation…shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
…….”
The convention goes on to provide for obligations of Member States in respect of co-operation, research, efforts to discourage or alternatively to detect trafficking, the criminalisation of trafficking and the treatment of victims. Amongst those and other obligations are two provisions directly relevant to these cases for criminal courts:
i) Article 10 requires States to provide means by which trained personnel are made available to identify and assist victims. It creates a positive duty to adopt measures to this end.
ii) Further, and most importantly for present purposes, Article 26 provides as follows under the heading “Non-punishment Provision”:
“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 United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual's cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster's Licensing Authority and a number of other bodies.
These agencies are charged with the identification of persons who have “reasonable grounds for being treated as a victim of trafficking”. That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually is a victim of trafficking, but rather that there are reasonable grounds to believe that they may be.
The application of Article 26
In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity (“duress of circumstances”). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed “abuse of process”.
The defences of duress and/or necessity (“duress of circumstances”) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see R v Z [2005] 2 AC 467. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity: see the cases discussed at Archbold2010, at paragraph 17.127ff.
The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences. At the time material to these cases the relevant guidance contained the following:
“Victims of human trafficking may commit offences whilst they are being coerced by another. When reviewing...
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