R v Verna Sermanfure Joseph and Others (Appellants and applicants) Anti-Slavery International (Interveners)
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ,Hallett LJ,Goss J |
| Judgment Date | 09 February 2017 |
| Neutral Citation | [2017] EWCA Crim 36 |
| Docket Number | Case Nos: 2015/05296/B1, 2015/04461/C1, 2010/06000/C1, 2015/04828/C1, 2016/01497/C1, 2016/01722/C3, 2015/04130/B4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 February 2017 |
and
[2017] EWCA Crim 36
The Lord Chief Justice of England And Wales
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
and
Mr Justice Goss
Case Nos: 2015/05296/B1, 2015/04461/C1, 2010/06000/C1, 2015/04828/C1, 2016/01497/C1, 2016/01722/C3, 2015/04130/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE FROM THE CRIMINAL CASES REVIEW COMMISSION AND ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Henry Blaxland QC and TomWainwright for the Applicant Joseph
Henry Blaxland QC and M Brewer for the Appellant VCL
Tom Wainwright for the Appellant NTN
Tom Wainwright for the Applicant Dong Nguyen
Shahida Begum for the Appellant AA (instructed by Philippa Southwell of Birds Solicitors)
Jessica Russell-Mitra for the Applicant Craciunescu
John McGuinness QC and Ben Douglas-Jones for the Respondent
Shu Shin Luh, Maria Moodie, andFelicity Williams (instructed by Zubier Yazdani of Deighton Pierce Glyn) for Anti-Slavery International, as Interveners
Hearing dates: 23 and 24 November 2016
Judgment Approved
Lord Thomas of Cwmgiedd, CJ, Hallett LJ and
INTRODUCTION
From 2000, a series of international conventions were agreed to deal with the scourge of trafficking in humans for the purposes of exploitation. These conventions imposed on the United Kingdom obligations in respect of those trafficked. In 2009, on the ratification of one of the Conventions, the Government established a National Referral Mechanism and, within the Home Office, what were named the Competent Authorities to determine whether those who claimed to have been trafficked for the purposes of exploitation had in fact been trafficked. In 2015, Parliament made comprehensive provision in respect of human trafficking by the enactment of the Modern Slavery Act 2015 (the 2015 Act) which was brought into force as regards the material provisions on 31 July 2015.
Until that Act there was no statutory provision which transposed into the law of England and Wales the obligations of the United Kingdom under the international conventions towards those victims of human trafficking for the purposes of exploitation who committed crimes in England and Wales where there was a nexus between the crime committed and the trafficking. In cases where the defence of duress was not likely to be applicable, it was left to the judiciary (utilising the flexible nature of the common law in a series of decisions in 2011–2013) and to the Crown Prosecution Service (CPS) (through the exercise of their independent prosecutorial discretion) to develop a legal regime for England and Wales in which the international obligations as they successively developed were given effect in the domestic law of England and Wales.
For those within the scope of the 2015 Act, the law is clearly set out in s.45 and Schedule 4. S.45 sets out the conditions which have to be satisfied for a defence to arise respectively for adults and children where there is a nexus between the trafficking and the crime committed. The offences to which the defence do not apply are set out in Schedule 4. For the future, the 2015 Act will therefore provide the legal framework.
However, as the Act was not drafted to provide retrospective protection, the regime that has been developed by the courts will, subject to the issue we consider at paragraphs 24 and following, continue to apply to those not within the scope of the Act who face charges, but who claim there is a nexus between the crime with which they are charged and their status as victims of trafficking for the purposes of exploitation.
We understand there is a considerable degree of optimism that the status of a person who claims to be a victim of such trafficking will be resolved through close cooperation between the CPS and the Competent Authority, as we explain at paragraphs 38–40. There will, however, remain cases to be resolved where either the claim to be a victim of such trafficking has only been made after conviction or where there is an issue as to the nexus between the offence and the trafficking or where the crime is so serious that it would nonetheless be in the public interest to prosecute the trafficked person.
In these conjoined appeals and applications the Court has heard together a series of appeals made by applicants who, save in the third appeal, have been designated by the Competent Authority as victims of human trafficking sometime after their convictions for a range of offences. The objective was to enable the court to try and resolve issues on the guidance given in the case law in respect of those who do not have the benefit of the 2015 Act. We would emphasise at the outset that each case is very heavily fact specific.
Anti-Slavery International, a charitable organisation founded in 1839 to combat the different forms of slavery then prevalent, intervened by way of written submissions to argue that this court should reassess the approach in the law developed by the courts and the CPS and should redefine the law of duress to bring it into line with the 2015 Act; we are grateful for the submissions which we consider at paragraphs 24 and following.
I: GENERAL PRINCIPLES
It is first necessary to provide a very brief summary of the international conventions.
International Conventions and the EU Directive
In 2001, following UN General Assembly Resolution 55/25 of 15 November 2000, the UN Convention against Transnational Organised Crime was agreed at Palermo in December 2000. Annex II to the Convention was the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, usually called the Palermo Protocol. It was ratified by the UK on 9 February 2006.
Its stated purpose was to prevent and combat trafficking in persons and to protect and assist victims of trafficking. A particular importance of the protocol is its definitions in Article 3:
"(a) "Trafficking in persons" 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 persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) "Child" shall mean any person under eighteen years of age."
The Palermo Protocol was complemented in the EU by EU Framework Decision (2002/629/JHA) on combatting trafficking in human beings (replaced in 2011, as set out at paragraph 14, by a Directive).
It was also followed by a Council of Europe Convention on Action against Trafficking in Human Beings which was agreed in Warsaw in May 2005. This convention was ratified by the UK on 17 December 2008 and came into force in respect of the UK on 1 April 2009. It adopted in Article 4 the same definition of trafficking in human beings as the Palermo Protocol. Article 26 entitled "Non-punishment provision" 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 Council of Europe Convention was accompanied by an Explanatory Report.
In 2010 the Strasbourg Court decided in Rantsev v Cyprus and Russia (2010) 51 EHHR 1, that Article 4 of the ECHR contained a procedural obligation similar to that in respect of Article 2 and therefore required effective means be in place in States to provide practical and effective protection of the rights of victims of trafficking (see paragraphs 282–289).
On 5 April 2011, the EU promulgated Directive 2011/36/EU on preventing and combatting trafficking in human beings. This has had direct effect from 6 April 2013.
i) Recital 14 of the Directive provided:
"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. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in."
ii) Article 2, paragraphs 1–4 provided:
" Offences concerning trafficking in human beings
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...
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