22 February 2021 by

V.C.L. and A.N. v the United Kingdom (16 February 2021)

Human trafficking is internationally recognised as threatening human rights and the basic values of democratic societies. States have taken motion to forestall, suppress and punish trafficking and to offer assist to victims of what’s the third largest illicit money-making enterprise on this planet. However what occurs when the victims of trafficking commit a criminal offense themselves? Ought to they be prosecuted? What components are related on this evaluation? And which arm of the State ought to the evaluation of whether or not somebody is a sufferer of trafficking be entrusted to? That is the primary time the European Court docket of Human Rights has tackled these questions. The Court docket discovered that the UK had breached its obligations beneath articles Four and 6 of the European Conference on Human Rights by prosecuting two Vietnamese youngsters who have been potential victims of trafficking. 


It was solely on the flip of the century that the primary complete worldwide instrument on human trafficking was adopted. The Palermo Protocol established plenty of obligations to forestall trafficking, punish traffickers and defend victims of trafficking. It defines trafficking as:

the recruitment, transportation, switch, harbouring or receipt of individuals, by the use of the risk or use of power or different types of coercion, of abduction, of fraud, of deception, of the abuse of energy or of a place of vulnerability or of the giving or receiving of funds or advantages to attain the consent of an individual having management over one other individual, for the aim of exploitation. Exploitation shall embody, at a minimal, the exploitation of the prostitution of others or different types of sexual exploitation, pressured labour or companies, slavery or practices just like slavery, servitude or the removing of organs

There are due to this fact three parts to trafficking: (i) motion (recruitment, transportation, switch, harbouring or receipt); (ii) means (risk or use of power or different types of coercion and so forth.); and (iii) goal (exploitation). When trafficking entails a toddler, the ‘means’ aspect of the check doesn’t apply.

The Council of Europe’s Anti-Trafficking Conference 2005 adopts the identical definition of trafficking because the Palermo Protocol and incorporates plenty of comparable provisions. However, not like its UN counterpart, the treaty incorporates a selected provision for the non-punishment of victims. Part 26 offers: 

Every Get together shall, in accordance with the fundamental ideas of its authorized system, present for the potential for not imposing penalties on victims for his or her involvement in illegal actions, to the extent that they’ve been compelled to take action.

The EU’s Anti-Trafficking Directive (2011/36) additionally incorporates a non-punishment provision in Article 8: 

Member States shall, in accordance with the fundamental ideas of their authorized programs, take the required measures to make sure that competent nationwide authorities are entitled to not prosecute or impose penalties on victims of trafficking in human beings for his or her involvement in felony actions which they’ve been compelled to commit as a direct consequence of being subjected to any of the acts referred to (within the definition of trafficking).

The UK Authorities, partly to implement these worldwide obligations, launched laws to fight trafficking. Part 45 of the Trendy Slavery Act 2015 offers a statutory defence for victims of recent slavery to sure offences in circumstances the place they’re compelled to commit a criminal offense. In Scotland, part Eight of the Human Trafficking and Exploitation (Scotland) Act 2015 requires the Lord Advocate to publish directions to prosecutors concerning prosecution in the identical circumstances. In Northern Eire, there’s a statutory defence in part 22 of the Human Trafficking and Exploitation (Prison Justice and Help for Victims) Act (Northern Eire) 2015 for victims who’ve been compelled to commit sure offences the place the compulsion was attributable to slavery or exploitation.

Background info

The case earlier than the Strasbourg Court docket involved two Vietnamese youngsters who had been charged and convicted of drug-related offences in 2009. One of many candidates was found by police in Cambridge in a four-bedroom home that had been arrange as a hashish manufacturing facility. The opposite applicant was discovered by police, hiding with different Vietnamese youngsters within the neighborhood of a hashish manufacturing facility in London. Central to the candidates’ claims was a purported failure by the police, prosecutors and judiciary to adequately defend them as victims of trafficking. Each had been charged, prosecuted, convicted and sentenced for felony offences related to their trafficking. 

Within the first applicant’s case, the UK Border Company and social companies had indicated to the Crown Prosecution Service that there have been cheap grounds for believing the applicant had been trafficked. Regardless of this, the Crown continued with the prosecution. The applicant, who had pleaded responsible, obtained authorized recommendation to not change his plea regardless of the view that he had been trafficked. His lawyer apparently thought that social companies have been ‘outrageous’ in suggesting a change in plea. He was sentenced to twenty months’ detention in a younger offenders’ establishment.

Within the second applicant’s case, the Crown thought-about that he was smuggled into the nation, fairly than a sufferer of trafficking. He was, like the primary applicant, suggested by his lawyer that he had no defence, and following a responsible plea, was sentenced to an eighteen-month detention and coaching order. In contrast to the primary applicant, it was not till after the second applicant had been sentenced that these authorities (together with the NSPCC Nationwide Trafficking Recommendation and Data Line) made their determinations that he was a sufferer of trafficking. Nonetheless, despite these developments, the Crown, having reviewed the applicant’s case, remained firmly of the view that the applicant was not a sufferer of trafficking and that the general public curiosity required prosecution. 

Each candidates’ appeals have been dismissed by the Court docket of Enchantment in 2012. The primary applicant’s case was additional thought-about by the Court docket of Enchantment in 2016, having been referred by the Prison Case Overview Fee. However, but once more, it was dismissed: the court docket being happy that the applicant’s culpability had not been lowered to such a stage that he shouldn’t be prosecuted within the public curiosity. 

The Court docket’s ruling

It’s now well-established that trafficking in human beings falls inside the scope of article Four of the Conference, which prohibits slavery, servitude and compelled or obligatory labour (Rantsev v Cyprus 2010). Broadly talking, Article Four within the context of trafficking imposes three sorts of constructive obligations on the State: (1) an obligation to place in place a legislative and administrative framework to ban and punish trafficking; (2) an obligation, in sure circumstances, to take operational measures to guard victims, or potential victims, of trafficking; and (3) a procedural obligation to analyze conditions of potential trafficking.

The Court docket started its first ever consideration of the problem of the prosecution of trafficking victims by confirming that, in step with the related worldwide devices, there is no such thing as a normal prohibition on the prosecution of victims. Nevertheless, it held that in sure circumstances the prosecution of victims might be at odds with the operational responsibility (responsibility 2 above) to take measures to guard victims, or potential victims, of trafficking. The important thing query was due to this fact whether or not the operational responsibility has arisen within the circumstances of the case. The operational responsibility was stated to come up 

the place the State authorities have been conscious, or should have been conscious, of circumstances giving rise to a reputable suspicion that an recognized particular person had been, or was at an actual and rapid danger of being, trafficked or exploited inside the which means of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Conference (the definition set out above). 

Just like the equal operational duties beneath articles 2 and three ECHR, the query whether or not and at what level the responsibility turns into engaged may be very a lot fact-specific. In making use of the check to the info of the V.L.T. case, the Court docket put specific emphasis on the age of the candidates (that they have been minors) and the particular weak group of which they have been members (Vietnamese minors). On the time of the candidates’ arrest, Vietnamese minors had already been recognized as a selected weak group by numerous scoping stories. From that second, the authorities ought to have been alert to the likelihood that they have been coping with victims of trafficking. The police and the Crown Prosecution Service ought to have been alert to the likelihood ‘from the very outset’ within the case of the primary applicant (§118) and, within the second applicant’s case, the responsibility kicked in ‘on the very newest’ from the purpose at which it was confirmed that he was a toddler (after some preliminary confusion). Furthermore, within the second applicant’s police interview, the account he gave of his circumstances ought to have given rise to trigger for concern, regardless of whether or not he was a toddler (§175). Specifically, he claimed that the hashish manufacturing facility door was guarded and locked from the skin, that he was not paid for his work and that he might need been killed if he stopped working. These components correspond to a number of the standards within the definition of trafficking within the Palermo Protocol and Anti-Trafficking Conference – to which regard have to be had always. 

The Court docket additional defined that the operational responsibility has two goals: to guard the sufferer of trafficking from additional hurt; and to facilitate his or her restoration (§159). As quickly because the operational responsibility kicks in, referral ought to be made to a Competent Authority beneath the Nationwide Referral Mechanism (§172, §175) and the person ought to be assessed promptly by people skilled and certified to cope with victims of trafficking (§160). Any resolution on whether or not or to not prosecute a possible sufferer of trafficking ought to – insofar as attainable – solely be taken as soon as a trafficking evaluation has been made by a certified individual (§161). The Court docket was significantly vital of the Crown for urgent forward with prosecution earlier than coordinating with the related our bodies. Though prosecuting authorities aren’t sure by choices of different our bodies as as to if a person is a sufferer of trafficking, “clear causes” per the definition of trafficking contained within the Palermo Protocol and Anti-Trafficking Conference ought to be given for reaching a special conclusion. In each the candidates’ instances, the Crown put ahead no such causes. Any justification put ahead for arguing with the UKBA (and NSPCC NTAIL) associated to ‘peripheral points’ – resembling the truth that the applicant had money and a cell phone –  and didn’t go to the core of the weather essential to determine trafficking (§170). The Court docket of Enchantment was additionally criticised for counting on the identical ‘insufficient causes’ and for ignoring its personal case-law and present CPS steering which indicated that trafficked youngsters could also be reluctant to reveal the circumstances of their exploitation and that prosecutors ought to be alert to that risk (§180). It adopted from all of this that the UK had failed in its responsibility beneath article Four of the Conference to take operational measures to guard the candidates, each initially, as a possible sufferer of trafficking, and subsequently as an individual recognised by a Competent Authority to be a sufferer of trafficking. 

A good trial situation additionally arose beneath article 6 of the Conference. There have been three key questions the Court docket needed to reply. First, did the failure to evaluate whether or not the candidates have been victims of trafficking earlier than they have been charged and convicted elevate a problem beneath article 6(1)? The Court docket stated that it did. Proof regarding an accused’s standing as a sufferer of trafficking is a ‘basic facet’ of the defence which she or he ought to be capable of safe with out restriction (§196) and the State couldn’t depend on any failings by the candidates’ authorized representatives on this regard. The second situation was whether or not the candidates’ responsible pleas represent a waiver of their truthful trial rights. Making use of its well-established case-law, the Court docket discovered that their rights weren’t waived as a result of the responsible pleas weren’t made ‘in full consciousness of the info’ and any waiver would run counter to the essential public curiosity in combatting trafficking and defending its victims (§202). Lastly, the Court docket carried out its traditional evaluation of the equity of the proceedings as a complete, discovering that the enchantment proceedings weren’t in a position to treatment the defects which had led to the candidates’ charging and eventual conviction; the Court docket of Enchantment’s evaluate was too slim and relied on the identical insufficient causes which have been superior by the CPS. As such there had been a violation of Article 6. Each candidates have been awarded sums of 25,000 in respect of non-pecuniary injury. 


It ought to be famous on the outset that the discovering of a violation of articles Four and 6 on this case isn’t a discovering that the UK’s normal framework for safeguarding victims of trafficking is insufficient. Somewhat, it considerations the operational measures that have been taken within the particular circumstances of the candidates’ instances. Furthermore, the occasions befell earlier than the legislative developments outlined above. There was thus no statutory defence within the type of part 45 of Trendy Slavery Act; the one methods during which the article Four obligations may very well be met on the time have been by prosecutorial discretion, the defence of duress, or an software to remain proceedings if the method of the court docket was abused.  This case doesn’t due to this fact essentially undermine the measures put in place by the U.Ok. Authorities to guard its victims of trafficking. 

Having stated that, it’s the first time that the Court docket has selected this situation and the steering it has given undoubtedly has essential sensible implications. The important thing takeaways for these coping with potential victims of human trafficking are more likely to be the next. First, early identification is of ‘paramount significance’. That is significantly so when the potential sufferer is a toddler. 

Second, co-ordination between the related our bodies is crucial. The UK Authorities created the Nationwide Referral Mechanism in accordance with which there are two Competent Authorities (the UK Border Company and the UK Human Trafficking Centre) accountable for making conclusive choices about whether or not somebody has been trafficked for the needs of exploitation. Prosecutors ought to wait till a trafficking evaluation has been made by a certified individual earlier than making a call whether or not to prosecute.

Third, prosecutors wouldn’t have to agree with the human trafficking evaluation made by one of many Competent Authorities. It’s open to them to disagree on the premise of ‘clear causes’ or, even when they settle for that the person is a sufferer of trafficking, prosecution should be a risk whether it is thought-about that there is no such thing as a nexus between the offence and the trafficking. 

This will assuage the considerations amongst some legislation enforcement contributors within the UK that the part 45 defence within the Trendy Slavery Act is getting used as a ‘loophole’ for offenders figuring out as victims (Unbiased Overview of the Trendy Slavery Act para 4.1.4). Nevertheless, evidently any disagreements ought to be stringently reviewed. Within the V.C.L case the Strasbourg Court docket was unimpressed by the CPS and Court docket of Enchantment’s reliance on ‘peripheral points’ unrelated to the definition of human trafficking. 

Lastly, the standing of a person as a sufferer of trafficking has implications when it comes to the equity of the trial. As quickly because the operational responsibility is triggered beneath article 4, it’s incumbent on the State always to take measures to guard the sufferer. The failure of a person or his or her lawyer to lift any points when it comes to article 6 doesn’t absolve the State of duty. The Strasbourg Court docket was vital of the Court docket of Enchantment’s dicta to the impact that it might solely be “in essentially the most distinctive instances” that the court docket would contemplate it acceptable to permit the defendant to advance recent directions concerning the info for the needs of an enchantment in opposition to conviction. Within the Strasbourg Court docket’s view, such an method ‘would in impact penalise victims of trafficking for not initially figuring out themselves as such and permit the authorities to depend on their very own failure to fulfil their responsibility beneath Article Four of the Conference to take operational measures to guard them.’ The identical dicta on the giving of recent directions in trafficking instances continues to be utilized domestically (see e.g. BTT v R [2021] EWCA Crim 4 at 37) and will require revision in gentle of this case. 

Except for this latter level, most of those components are already included into the related prosecutorial steering (see for instance, the CPS guidance on Human Trafficking, Smuggling and Slavery;  and the Lord Advocate’s guidance). 

The true significance of the case would possibly, then, be present in its influence on attitudes and consciousness fairly than leading to any adjustments to the relevant steering. In an space imbued with discretionary judgments and assessments, this would possibly truly be extra vital.

Extra usually, the case varieties the most recent improvement in a fast-paced space of human rights jurisprudence, following sizzling on the heels of final years Grand Chamber judgment in S.M. v Croatia 2020.  According to an ‘built-in method’ to interpretation, the Court docket has included plenty of the related worldwide requirements on human trafficking into its article Four case-law. The non-prosecution of victims is the most recent essential precept to make its manner into ECHR jurisprudence, bolstering the safety on provide to victims of trafficking.