VICTIMS OF TRAFFICKING AS DEFENDANTS: TWO CASE STUDIES Francis FitzGibbon QC 23 Essex Street

INDICATIONS OF ‘COUNTY LINES’ TRAFFICKING – YOUTH JUSTICE LEGAL CENTRE arrested for possession and intent to supply of significant quantities of drugs, particularly heroin and crack cocaine; arrested away from their own home area; arrested on public transport, particularly a train; arrested in a cuckooed address; in care, particularly residential care; carrying a weapon when arrested; unexplained injury, possibly caused by a knife; arrested with or are accompanied by older males or females.

Unhelpful Responses ‘banging on about trafficking’; ‘the offence was not sexual in nature;’ ‘not in our contract’.

CPS Guidance on Human Trafficking, Smuggling and Slavery (December 2018) Prosecutor's obligations Prosecutors should be aware of the obligations imposed upon them when deciding whether to prosecute a suspect who might be a victim of trafficking or slavery and who: In the case of an adult, has been compelled to commit a criminal offence as a direct consequence of their situation. In the case of a child under 18, has done the act as a direct consequence of being a victim of slavery or exploitation.

Section 45(4) of the Modern Slavery Act 2015 A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.

Learning Points (1) Awareness of indications of trafficking Awareness of reluctance/fear of being seen as a ‘grass’ Winning trust of young person Awareness of YJLC guidance Awareness of CPS guidance Necessity to make representations ASAP to CPS and YOT Awareness of potential psychiatric/psychological difficulties

GS [2019] 1 Cr App R 7

EUROPE (1) Article 4 of the ECHR Prohibition of slavery and forced labour No one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour…  

EUROPE (2) Article 26 of ECAT: …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  

EUROPE (3) Article 8 of the Directive: “Non-prosecution or non-application of penalties to the victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to … [trafficking] …”

Learning Points (2) There will be more historic cases as people become more aware of the impact of the duty to protect VoTs. For children under 18 at the time of the offence, Section 45 provides a defence, subject to gaining permission to appeal out of time Beware the need for ‘exceptional leave to appeal’ in out of time change of law cases: Jogee [2016] 1 Cr App R 31 Johnson [2017] 1 Cr App R 12 Mitchell (1977) 65 Cr App R 185 Ordu [2017] 1 Cr App R 21 Until Strasbourg rules otherwise, GS sets the bar high for success. For adults, a high degree of compulsion, falling short of duress, will be required.

Further Reading (1): UK Cases R. v O [2008] EWCA Crim 2835 LM & Ors [2011] 1 Cr. App. R. 12 R v N and R v Le [2012] 1 Cr. App. R. 35 R v L, N, N & T [2013] 2 Cr. App. R. 23 Joseph [2017] 1 Cr App R 33 Jogee [2016] 1 1AC 31 Johnson [2016] 1 Cr App R 218 R v K [2017] EWCA Crim 486 Ordu [2017] 1 Cr App R 21 R. v Mitchell (1977) 65 Cr. App. R. 185 R. v Roberts [2016] 2 Cr. App. R. (S.) 14

Further Reading (2): Strasbourg Cases SM v Croatia, application no 50561/14, 19 July 218 AN v United Kingdom, application no 75603/12, 19 June 2018 VCL v United Kingdom, application no 77587/ 44, 15 March2018 Chowdury and Others v Greece, application no 21884/15, 30 March 2017 LE v Greece, no 71545/12, 21 April 2016 CN v UK, no 4239/08, 13 November 2012 Rantsev v Cyprus and Russia (2010) 51 EHRR 1 Siliadin v France (2006) 43 EHRR 16