Information Note on the Court’s case-law 248
V.C.L. and A.N. v. the United Kingdom – 74603/12 and 77587/12
Judgment 16.2.2021 [Section IV]
Trafficking in human beings
Domestic authorities’ failure to take operational measures in line with international standards to protect minors prosecuted despite credible suspicion they were trafficking victims: violation
Failure to investigate applicants’ status as potential trafficking victims affecting overall fairness of criminal proceedings: violation
Facts – The applicants, Vietnamese nationals and minors at the relevant time, were discovered by police to be working in cannabis factories and charged with being concerned in the production of a controlled drug. At the time, several national reports had found that Vietnamese children were particularly vulnerable to being trafficked into and within the United Kingdom and being exploited in such factories. The applicants were not referred immediately for assessment as potential victims of trafficking, but the Competent Authority later determined that both had been trafficked. The Crown Prosecution Service (CPS) disagreed with that assessment and pursued their prosecution. Both applicants pleaded guilty to the charges and were convicted. They later appealed unsuccessfully.
Law – Article 4: (a) General principles for the prosecution of (potential) victims of trafficking
The present case was the first occasion on which the Court had been called upon to consider if and when a case concerning the prosecution of a (potential) victim of trafficking might raise an issue under Article 4. No general prohibition on the prosecution of victims of trafficking could be construed from international anti-trafficking standards, nor could prosecuting child trafficking victims be precluded in all circumstances. Nevertheless, the prosecution of (potential) victims of trafficking might, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an individual had been trafficked.
For the prosecution of a (potential) victim to demonstrate respect for the freedoms guaranteed by Article 4, their early identification was of paramount importance. As soon as the authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an individual suspected of having committed a criminal offence might have been trafficked or exploited, they should be assessed promptly by trained and qualified individuals, based on the criteria identified in international standards, having specific regard to the fact that threat of force and/or coercion was not required where the individual was a child.
Moreover, as an individual’s status as a victim of trafficking might affect whether there was sufficient evidence to prosecute and whether it was in the public interest to do so, any decision on whether or not to prosecute a potential victim should, insofar as possible, only be taken once a trafficking assessment had been made by a qualified person. That was particularly important where children were concerned. The Court drew on its case-law from Articles 3 and 8 in respect of acts of violence to find that, as children were particularly vulnerable, the measures applied by the State to protect them against acts falling within the scope of Article 4 should be effective and include reasonable steps to prevent acts of which the authorities had, or ought to have had, knowledge, and effective deterrence. Once a trafficking assessment had been made by a qualified person, any subsequent prosecutorial decision had to take that assessment into account. While the prosecutor might not be bound by those findings, they would need clear reasons consistent with the definition of trafficking contained in the international standards for disagreeing with it.
(b) Application of these principles
It would have been open to the CPS, on the basis of clear reasons consistent with the definition of trafficking in international standards, to have disagreed with the conclusion of the Competent Authority that both applicants had been a child victim of trafficking. If accepted, it might also have been open to the CPS to prosecute them, if it considered that there had been no nexus between the offence and trafficking. However, neither of those two things had happened.
The first applicant had been discovered in circumstances which themselves had given rise to a credible suspicion that he had been a victim of trafficking. While the second applicant had been considered an adult when first discovered by the police, a credible suspicion had existed at the very latest nine days after, when the authorities had accepted that he was a minor. Nevertheless, both applicants had not been referred to the Competent Authority for a trafficking assessment, but they had been instead charged with criminal offences to which they had later pleaded guilty.
Secondly, even though the applicants had been subsequently recognised by the Competent Authority as victims of trafficking, the CPS, without providing adequate reasons for its decisions, had disagreed with that assessment and the Court of Appeal, relying on the same inadequate reasons, had found that the decisions to prosecute them had been justified. Both domestic jurisdictions had relied on factors which had not appeared to go to the core of the internationally accepted definition of trafficking.
In light of the foregoing, the State had not fulfilled its duty under Article 4 to take operational measures to protect the applicants, either initially, as potential victims of trafficking, or subsequently, as persons recognised by the Competent Authority to be victims of trafficking.
Conclusion: violation (unanimously).
Article 6 § 1: (a) Whether failure to investigate the applicants’ victim-of-trafficking status before they were charged and convicted raises any issue under Article 6
Both applicants had been legally represented from the outset, a factor generally considered to be an important safeguard against any unfairness in the proceedings. However, their representatives had dismissed out of hand the possibility that they had been victims of trafficking and had failed to act accordingly. Nevertheless, while criminal defence lawyers should undoubtedly be alert to indicators of trafficking, their failure to do so could not by itself absolve the State and its agents of their responsibility. In the context of Article 4, the State was under a positive obligation both to protect victims of trafficking and to investigate potential trafficking. That obligation was triggered by the existence of circumstances giving rise to a credible suspicion that an individual had been trafficked, not by a complaint made by or on behalf of the potential victim. A defendant, especially a minor, could not be required to self-identify as a victim of trafficking or be penalised for failing to do so. Accordingly, the lack of a timely assessment of whether the applicants had in fact been trafficked had prevented them from securing evidence which might have constituted a fundamental aspect of their defence.
(b) Whether the applicants waived their rights under Article 6
The applicants had provided “unequivocal” guilty pleas and, as they had been legally represented, they had almost certainly been made aware of the consequences. However, in the absence of any assessment as to whether they had been trafficked and, if so, whether that could have had any impact on their criminal liability, those pleas had not been made “in full awareness of the facts”. Further, any waiver of rights would have run counter to the important public interest in combatting trafficking and protecting victims. It was true that the first applicant had not taken the opportunity given by the trial judge to apply to vacate his plea on the advice of his legal representative. Nevertheless, as a minor who had been arrested and prosecuted within a foreign criminal justice system, who had already pleaded guilty to an offence in circumstances which had not amounted to a waiver of his Article 6 rights, the applicant could not be said to have subsequently waived those rights by deciding not to pursue applications against the robust advice of his legal representative.
(b) Whether the fairness of the proceedings as a whole was prejudiced
Even though the applicants had pleaded guilty to the offences charged, the CPS had reviewed its decision to prosecute after the Competent Authority had recognised them as victims of trafficking. In addition, they had both subsequently been granted permission to appeal out of time and the first applicant’s case had been referred back to the Court of Appeal for a further appeal.
However, the reasons given by the CPS for the disagreeing with the Competent Authority had been wholly inadequate, and inconsistent with the definition of trafficking in international law. Moreover, in dismissing the appeals on both occasions, the Court of Appeal had relied on the same reasons advanced by the CPS. Although the applicants had invoked Article 4, it had not considered their case through the prism of the State’s positive obligations under that Article. On the contrary, it had restricted itself to a relatively narrow review, which would penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duties under Article 4 to take operational measures to protect them. Consequently, the appeal proceedings had not cured the defects in the proceedings which had led to the applicants’ charging and conviction.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 each in respect of non-pecuniary damage.
(See also S.M. v Croatia [GC], 60561/14, 25 June 2020, Legal Summary)