Noemi Magugliani is an Irish Research Council Government of Ireland PhD scholar, and GLAN Legal Researcher, at the Irish Centre for Human Rights. Noemi’s research examines gendered constructions of vulnerability and access to protection for trafficked adult males in Italy and in the United Kingdom.
In February 2021, the European Court of Human Rights (ECtHR, or Court) delivered another landmark judgment, after Rantsev v Cyprus and Russia and Chowdury and Others v Greece, on the subject of trafficking in human beings. In V.C.L. and A.N. v the United Kingdom, the Court was called upon to evaluate whether the decision of the British authorities to prosecute V.C.L. and A.N., two Vietnamese minors who had been trafficked for the purpose of forced criminality, violated Articles 4 and 6 of the European Convention on Human Rights (ECHR), in light of the non-punishment principle.
While the 2000 UN Trafficking Protocol is silent on the matter of safeguards for trafficked persons against the prosecution for their unlawful acts arising as a direct consequence of their trafficking, the relevance of the non-punishment principle was first recognised in the 2002 OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking. The 2005 Council of Europe Convention on Action against Trafficking in Human Beings built on the 2002 OHCHR Recommended Principles, introducing Article 26:
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.
Article 26 is reinforced by, inter alia, Council Directive 2011/36/EU (Article 8). Even if neither the Convention nor the Directive contains an obligation to absolve all trafficked persons from criminal responsibility, or is prescriptive about how to implement the non-punishment principle, the margin of discretion afforded to States is not without limitations.
In the case of V.C.L. and A.N., the ECtHR unanimously found that the prosecution of the applicants did not comply with the positive obligations flowing from Article 4 ECHR, and that the criminal proceedings could not be deemed to have been conducted in compliance with the guarantees of fair trial provided for by Article 6 ECHR. The Court provided valuable guidance with respect to how the criminal justice system should approach the identification of trafficked persons within criminal proceedings, as well as their prosecution in light of the non-punishment principle.
Background of the case
The two cases, which were initially submitted separately, concern the prosecution of the (then) minor applicants, V.C.L. and A.N. – both of whom were, at different points in the course of criminal proceedings, recognised as having been trafficked by the United Kingdom’s Competent Authority (CA), the body responsible for the evaluation of a person’s status as ‘victim of trafficking’ – for criminal offences connected to their involvement as ‘gardeners’ in cannabis factories. The two applicants were found by the police in properties that had been transformed into cannabis factories, respectively in May and April 2009, and were charged with production of a controlled drug. In both cases, counsels advised to plead guilty, as they believed there was no defence available to the applicants. V.C.L. was sentenced to twenty months detention in a young offenders’ institution, and A.N. was sentenced to an eighteen-month detention and training order.
The criminal proceedings against V.C.L. and A.N.
In the case of V.C.L., a referral to the CA was completed in the course of the criminal proceedings. The Crown Prosecution Service (CPS) reviewed its decision to prosecute before a conclusion was reached by the CA, adjourning the case after the CA notified it of a positive Reasonable Grounds decision. Notwithstanding the findings of the CA, and with no official reasons given for the decision, the Chief Crown Prosecutor confirmed that V.C.L. should be prosecuted.
In the case of A.N., it was only after his conviction that a social worker concluded that there were reasonable grounds to believe that he had been trafficked – significantly, this finding was based on elements that had been available to the police since A.N.’s first interview upon arrest. On 16 November 2010, almost a year after A.N. was convicted, the CA concluded that he had been trafficked. However, “as he had turned eighteen … it was not accepted that he was a person ‘in need’ [and] he was no longer considered to be a victim of human trafficking” (para 34). In June 2011, a Special Casework Lawyer from the CPS reviewed A.N.’s case, but she remained firmly of the view that A.N. had not been trafficked and that the public interest would require a prosecution.
V.C.L. and A.N.’s appeals to the domestic courts
Both V.C.L. and A.N. appealed their conviction and sentence. In the joint judgment handed down in February 2012, the Court of Appeal found that Article 26 of the Council of Europe Anti-Trafficking Convention “was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking” (§43). Having considered the facts of the applicants’ cases, the Court of Appeal dismissed their appeal against conviction, arguing that the decision to prosecute was amply justified. The applications for permission to appeal to the Supreme Court were refused. A further appeal of V.C.L. was refused by the Court of Appeal in 2013.
The case before the European Court of Human Rights: The assessment of the United Kingdom’s compliance with Article 4 positive obligations
Before the ECtHR, the applicants complained under Article 4 ECHR that the CPS failed to adequately protect them in the aftermath of their trafficking experience, and that there was a failure to conduct an Article 4 compliant investigation into whether they had been trafficked, as well as a failure to adopt operational measures to protect them.
The Court noted that the British authorities were, or ought to have been, aware that cannabis cultivation was an offence likely to be carried out by trafficked minors, and that Vietnamese boys and girls were identified as a particularly vulnerable group, in light of CPS’ own guidance as well as multiple NGO reports. The Court therefore considered that “from the very outset the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked” (§118). Therefore, in both cases a positive obligation to take operational measures to protect the applicants arose shortly after they were discovered. The Court further held that the failure to recognise indicators of trafficking on the part of criminal defence lawyers, or the failure on the part of the trafficked person to self-identify during criminal proceedings, “cannot by itself absolve the State and its agents of their responsibility to do so” (§198).
Although the Court acknowledged that no general prohibition on the prosecution of trafficked persons can be construed from the Council of Europe Anti-Trafficking Convention, or any other international instrument, it considered that:
[…] the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked (§159).
As the Council of Europe Group of Experts on Action against Trafficking in Human Beings stressed in its submission as third-party intervener, Article 26 of the Council of Europe Convention is aimed at safeguarding “the human rights of victims and avoid further victimisation” (§143). Indeed, the Court found, inter alia, that the prosecution of trafficked persons would be detrimental to their physical, psychological and social recovery, and it could potentially leave them vulnerable to being re-trafficked in the future. This is particularly important, the Court stressed, where children are concerned, as they are deemed to be particularly vulnerable.
The Court further noted that:
[…] any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person (§161).
Although the Prosecutor might not be bound by the findings made in the course of a trafficking assessment, they would need to have clear reasons for disagreeing with it. In the case of V.C.L., the CPS twice found that the decision to prosecute him was justified, without providing adequate reasons for its decision, and disagreeing with the Competent Authority assessment. Accordingly, the Court found that there has been a violation of Article 4 ECHR. With respect to A.N., in dismissing his appeal, the Court of Appeal held that criticism of the process which culminated in A.N. being sentenced ignored the fact that he himself had provided accounts suggesting that he had been ‘smuggled’ into the United Kingdom. The ECtHR, however, stressed the inconsistency of the decision with the CPS’s own guidance, which indicated that trafficked children might be reluctant to disclose the circumstances of their exploitation and, as a consequence, Prosecutors should themselves be alert to the possibility. In this respect, the Court noted that certain elements of A.N.’s discovery and subsequent police interviews should have raised concerns that he might have been trafficked. From that point on, the Court held, the State had a positive obligation to take operational measures to protect him and failed to do so by allowing the prosecution to continue, without providing clear reasons for this decision. Therefore, the Court found a violation of Article 4 ECHR.
The impact of the failure to identify – or treat – the applicants as trafficked persons on their right to a fair trial
The applicants further complained that, as a result of the violation of the United Kingdom’s positive obligations under Article 4, they were also denied a fair trial within the meaning of Article 6 ECHR. While the Court held that an applicant may waive the right to have a criminal case examined on the merits, a decision to accept a plea bargain should be accompanied by certain conditions – including the full awareness of the facts and the legal consequences of accepting the plea, and a sufficient judicial review of the fairness of the manner in which the plea bargain is reached between the parties (§201). In the cases of V.C.L. and A.N., the Court found that, as “the applicants’ guilty pleas were … not made ‘in full awareness of the facts’” (§202), it could not consider that the applicants waived their rights under Article 6 § 1 of the Convention.
The Court acknowledged that trafficked persons are “not immune from prosecution” (para §), but it also recognised that the status of ‘victim of trafficking’ can affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so (para 196). As the reasons given by the CPS, and later by the Court of Appeal, for disagreeing with the CA were “wholly inadequate” (§207), the ECtHR concluded that “in respect of both applicants the proceedings as a whole could not be considered ‘fair’” (§209), and that therefore there has been a violation of Article 6§1 ECHR.
The implications of the Court’s findings
While the cases of V.C.L. and A.N. pre-date the introduction of the 2015 Modern Slavery Act (MSA), which includes a trafficking statutory defence in section 45, the Court’s judgment nonetheless provides significant guidance on the relationship between factual findings in the criminal justice system, on the one hand, and trafficking determinations made by the Single Competent Authority, on the other hand. Indeed, as Ofer highlighted, concerns on the effective and systematic application of the non-punishment provision to trafficked persons, especially in the context of cannabis cultivation and with respect to trafficked children, remain even after the entry into force of the MSA.
It is significant that the ECtHR stressed that a decision to prosecute should be taken, so far as possible, only after a trafficking assessment has been made by a qualified body. As the Court of Appeal has insisted on preserving the ability of criminal courts to disagree with the decisions of the Single Competent Authority and the judicial determinations of trafficking in other context, including immigration appeals (see, e.g., BTT v R  EWCA Crim 4), the judgment in V.C.L. and A.N. is also significant in that it emphasises that, in order to disagree with the qualified body’s decision, the prosecuting authority will need to have clear reasons, which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention.