The Non-punishment Principle and the Obligations of the State Under Article 4 of the European Convention of Human Rights: V.C.L. AND A.N. v the United Kingdom (applications nos.77587/12 and 74603/12)
| DOI | 10.1177/00220183211026826 |
| Published date | 01 August 2021 |
| Date | 01 August 2021 |
| Author | Sean Mennim |
| Subject Matter | Case Notes |
Case Note
The Non-punishment
Principle and the Obligations
of the State Under Article 4 of
the European Convention
of Human Rights
V.C.L. AND A.N. v the United Kingdom (applications nos.77587/12 and
74603/12)
Keywords
Forced labour, right to fair trial, trafficked victims, human rights, criminal procedure, children,
cultivation of cannabis, human trafficking, local authorities’ powers and duties
The case before the Strasbourg Court concerned two Vietnamese children who had been charged and
convicted of drug-related offences in 2009. The first applicant (‘VCL’) was discovered by police in
Cambridge in a four-bedroom house that had been set up as a cannabis factory. The second applicant
(‘AN’) was found by police, hiding with other Vietnamese children in the vicinity of a cannabis
factory in London. Central to the applicants’ claims was a purported failure by the police,
prosecutors and judiciary to adequately protect them as victims of trafficking (VOTs). Both had
been charged, prosecuted, convicted and sentenced for criminal offences connected to their
trafficking.
In VCL’s case, the UK Border Agency and social services had indicated to the Crown Prosecution
Service (CPS) that there were reasonable grounds for believing the applicant had been trafficked.
Despite this, the Crown continued with the prosecution. VCL, who had pleaded guilty, received legal
advice not to change his plea despite the view that he had been trafficked. His lawyer apparently
thought that social services were ‘outrageous’ in suggesting a change in plea (at [16]). He was
sentenced to 20 months’ detention in a young offenders’ institution. The prosecutor argued that VCL
was not a VOT, as evidenced by his being ‘found in an ordinary house with a mobile phone, credit and
money’ (at [17]).
In AN’s case, the Crown considered that he was smuggled into the country, rather than a VOT. He
was, like VCL, advised by his lawyer that he had no defence, and following a guilty plea, was sentenced
to an 18-month detention and training order. Unlike VCL, it was not until after AN had been sentenced
that these authorities (including the NSPCC National Trafficking Advice and Information Line) made
their determinations that he was a VOT. Nonetheless, in spite of these developments, the Crown, having
reviewed AN’s case, remained firmly of the view that he was not a VOT and that the public interest
required prosecution.
Both applicants were granted permission to appeal out of time. They argued, inter alia, that as VOTs
they should not have been prosecuted. The Court of Appeal considered the UK’s obligations under
Article 26 of the Council of Europe’s Convention on Action Against Trafficking in Human Beings
(2005) (ECAT) which requires States to ‘provide for the possibility of not imposing penalties on victims
The Journal of Criminal Law
2021, Vol. 85(4) 311–319
ªThe Author(s) 2021
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DOI: 10.1177/00220183211026826
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