R v N; R v L
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 20 February 2012 |
| Neutral Citation | [2012] EWCA Crim 189 |
| Docket Number | Case No: 2011/01252B3 AND 2010/06660D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 February 2012 |
[2012] EWCA Crim 189
Lord Chief Justice of England and Wales
Mr Justice Royce
and
Mr Justice Globe
Case No: 2011/01252B3 AND 2010/06660D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
P Carter QC and P Chandran for N
D Bunting for LE
Tim Owen QC and B Douglas-Jones for the Crown
(None of whom appeared below)
Hearing dates : 22 nd and 23 rd November 2011
These otherwise unconnected appeals require consideration of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (CETS No 197), (the Convention) ratified by the United Kingdom in December 2008 in the context of appeals against conviction.
Trafficking in human beings
No one doubts that trafficking in human beings is abhorrent and that those who do so have committed or are committing very serious crimes. The explanatory report which accompanies the Convention explains why:
"Trafficking human beings, with the entrapment of its victims, is the modern form of the old world wide slave trade. It treats human beings as a commodity to be bought and sold, and to be put to forced labour, usually in the sex industry but also, for example in … declared or undeclared sweat shops, for a pittance or nothing at all. Most identified victims of trafficking are women … many of the victims are young, sometimes children. All are desperate to make a meagre living, only to have their lives ruined by exploitation and rapacity."
For the purposes of the Convention Article 4 provides that:
"…
(a) Trafficking in human beings shall mean 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 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, …
(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 sub-paragraph (a) have been used.
(d) The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered "trafficking in human beings" …"
Any person aged under 18 years is a "child" for the purposes of the Convention, a provision which equates with section 107 of the Children and Young Person Act 1933.
Given the evil which the Convention is seeking to address, it is hardly surprising that trafficking in human beings falls within the scope of the prohibitions on slavery, servitude and forced or compulsory labour contained in Article 4 of the European Convention of Human Rights. ( Rantsev v Cyprus and Russia [2010] 51 E.H.R.R. 1).
In R v SK [2011] EWCA Crim. 1691 the appellant successfully appealed her conviction of trafficking a complainant into the United Kingdom for the purposes of exploitation, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The core elements of Article 4 formed what the court in its judgment identified as a hierarchy of denial of personal autonomy encapsulated in the concept of trafficking. "Slavery" involved treating someone as belonging to oneself, rather as an animal or object; "servitude" involved an obligation enforced by coercion to provide services for another person; and "force or compulsory labour" involved work under the threat of penalty and performed against the will of the person concerned. The three concepts were not necessarily mutually exclusive. The common denominator between them was that the victim was subject to enforced control.
In essence, for a human being to be treated as property is an affront to human dignity. The evil of trafficking in human beings is an international problem which is condemned throughout the civilised world.
The present appeals
These appeals arise not from the crime of trafficking in human beings, but rather the conviction and sentencing of two defendants who themselves may have been (and it is contended, were) the victims of trafficking and consequent exploitation, who pleaded guilty to offences involving the production of cannabis. The appellants were sentenced on separate occasions in September 2009 and January 2010.
The appeals are well out of time. Indeed the sentences of imprisonment imposed on the appellants have been served. This is said to be the first occasion when this court has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force of the Convention. However, cases involving the trafficking of children or young persons into demeaning and virtually inescapable servitude raise similar considerations to those raised in any of the many different forms which the exploitation of the vulnerable may take. Accordingly we granted extensions of time to enable these issues to be argued. Permission to appeal was granted in both cases, in Le this was prior to the commencement of the appeal hearing, in N permission was granted on the first day of the appeal hearing.
We must emphasise at the outset that in this court we are concerned with the single question, whether, in each case, the conviction is safe.
At the risk of failing to do justice to carefully developed submissions, advanced by Mr Carter QC for N, with increasing refinement, and supported by Mr Bunting for LE, the argument in summary is that neither appellant should have been prosecuted at all, and that if the facts had been properly investigated, there would have been, or now following proper investigation after conviction, it has become apparent that there should never have been a prosecution. If there had been no prosecution there would have been no conviction. In contravention of the United Kingdom's Treaty obligations the processes of the court which culminated in these convictions were misused. In essence, everyone has missed the point, that the appellants fell within the wide ambit of the critical provision at the heart of the appeals, Article 26 of the Convention.
Article 26 forms part of chapter 4(IV), which deals with the substantive criminal law. The main provisions require that trafficking in human beings must be criminalised. Supplementary provisions are directed to specific aspects of trafficking and exploitation and circumstances which provide aggravating features of trafficking offences are identified. Article 26 is different. It makes provision for "Non-punishment". Its effect is to require 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".
As the argument developed it seemed to us that care had to be taken not to allow the protection against trafficking and exploitation required by the Convention to be elided with appropriate processes when the victim of trafficking appeared to have become involved in criminal activities. Although expressly disavowed it was difficult to avoid the impression that one of the themes implicit in the submissions, and indeed in the substantial body of post conviction evidence produced on behalf of the appellants, was the proposition rejected by this court in R v LM and Others [2010] EWCA Crim. 2327 that once it is demonstrated that an individual has been or may have been trafficked, then he or she should not be prosecuted for crimes committed within that context. The logical conclusion of such elision would be to create a new form of immunity (albeit under a different name) or to extend the defence of duress by removing the limitations inherent in it. Whatever form of trafficking is under consideration, that approach to these problems, as both Mr Carter and Mr Bunting accepted, would be fallacious.
The language of Article 26 is directed at the sentencing decision rather than the decision to prosecute. It does not provide that penalties should not be imposed on victims of trafficking in a broad general way; the possibility of not imposing penalties is related to criminal activities in which the victims of trafficking have been compelled to participate in circumstances in which the defence of duress is not available.
Its ambit has already been considered in this court. In R v O [2008] EWCA Crim. 2835 the appeal was not opposed. A girl in her mid teens who, according to her account had entered the country two months before her arrest. She had entered the country lawfully, in possession of a passport and a visa. She came to the UK in order to escape from her father's threat to kill her for refusing to submit to a forced marriage to a much older man who already had five wives. She was told on her arrival in the UK that payment for the trip was to be made by her prostitution. She was raped and forced into prostitution. She managed to escape and was provided with false identity documents by someone she met. On 29 th February 2008 she was arrested in Dover seeking to leave the UK. Her possession of the false identity documents in order to leave the UK formed the subject matter of the indictment. In the Crown Court, just...
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