by: Colin Gregory (University of Leeds)
Introduction
On 16 February 2021, the European Court of Human Rights (ECtHR) assessed for the first time the prosecution of trafficking victims under Article 4 of the European Convention (ECHR), in VCL and AN v United Kingdom. Two Vietnamese nationals were charged, convicted and detained as children for producing cannabis. Their criminalisation occurred despite both being conclusively recognised as victims of trafficking (VCL before conviction, AN after), and despite awareness that cannabis farmers are often exploited children (as both were). This commentary summarises the unanimous judgment that the UK breached its positive obligation to take operational measures to protect VCL and AN. It begins by explaining the facts, then looks at the legal reasoning in respect of Article 4 ECHR, and finally considers future implications. This is a welcome judgment, highlighting failings in the UK’s criminal justice system dating back to 2009 and which the UK disputed right up to 2021. The judgment’s focus on positive operational measures, though, neglects blurry lines between Article 4 obligations.
Facts of the Case
VCL was arrested in May 2009, when he was found alone with more than £130,000 worth of cannabis plants. He confirmed at interview that he was 15 and did not know the plants were illegal but was nonetheless charged with producing a controlled drug. In August, VCL pleaded guilty on advice from counsel, having initially instructed he was innocent. The UK’s Competent Authority (its expert body responsible for making trafficking determinations) conclusively decided in November that VCL had been trafficked. The prosecutor reviewed the case in December and chose to proceed as: ‘the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking.’ (para. 14). VCL considered changing plea but, having again been advised against doing so, maintained he was guilty. He was sentenced to 20 months’ detention in a young offenders’ institution in January 2010. The prosecutor argued VCL was not a trafficking victim, as evidenced by his being: ‘found in an ordinary house with a mobile phone, credit and money.’ (para. 17)
AN was arrested at a cannabis factory on 21 April 2009. He was also charged with producing a controlled drug. AN incorrectly gave his year of birth as 1972 (he was actually 17, born 1992, as he confirmed on 30 April). He said he had not known the plants were illegal and had feared he could be killed if he stopped working. He pleaded guilty in July following advice and was sentenced in September to 18 months’ detention. In November 2010, he was conclusively recognised as a trafficking victim. A prosecutor reviewed AN’s case in June 2011 in light of the Competent Authority’s trafficking decision. It was maintained that, given his inconsistent evidence and possession of cash and a phone, AN was not a trafficking victim and the public interest required prosecution.
Domestic litigation
Both VCL and AN appealed against the convictions. Their cases were joined together and, on 20 February 2012, dismissed by the UK’s Court of Appeal. That Court considered the UK’s obligations under Article 26 of the Council of Europe’s Anti-Trafficking Convention (ECAT), which requires that a contracting State: ‘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.’ It found that Article 26 required only prosecutorial discretion not to penalise trafficking victims. There was accordingly no need to extend the pre-existing duress defence or provide trafficking victims with immunity against prosecution. The Court of Appeal saw its own role as restricted to reviewing whether the prosecutions constituted an abuse of process.
After being refused permission to appeal to the UK’s Supreme Court, VCL and AN applied to the ECtHR in November 2012. The delay of more than 8 years until judgment was due in part to VCL requesting a domestic review of his conviction in December 2013. VCL’s case returned to the UK’s Court of Appeal and was again dismissed, on 9 February 2017. That Court determined that the public prosecutor had not been bound by the Competent Authority’s decision and, in any event, there was no nexus between trafficking and VCL’s offence to extinguish criminal liability. By then the UK Modern Slavery Act 2015 had come into force, providing a statutory defence for trafficking victims but without retrospective effect.
The Court’s Judgment - Principles
The UK argued inadmissibility under Article 34 ECHR because VCL and AN were not ‘victims’ following the public prosecutor’s and Court of Appeal’s findings. The ECtHR rejected this argument due to clear trafficking indicators and the conclusive trafficking decisions in both cases.
Re-affirming its Article 4 case-law, the ECtHR held that trafficking itself stands prohibited and that positive obligations include prevention, protection of victims, and investigation measures. Positive obligations flow from ECAT and its interpretation by its monitoring body, the Group of Experts on Trafficking in Human Beings (GRETA). Of these obligations, the ECtHR concentrated on the protective duty to take operational measures. This operational duty is triggered only when a State was, or should have been, aware: ‘of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked.’ (para. 152). A State must then remove the identified person from the situation of risk. This may require facilitating identification of victims and aiding their recovery, though operational measures must not constitute a ‘disproportionate burden’ (para. 154) bearing in mind the difficulty of policing modern societies. This is similar to the Osman duty under Article 2 ECHR, which explains when police must take measures to protect life against private criminal acts.
These principles were applied to the new context of prosecuting trafficking victims. The ECtHR found no general requirement not to prosecute; however, if adult victims were compelled to commit an offence the authorities should be entitled, but not obliged, not to prosecute. Child victims need not prove they were compelled to offend but still there is no absolute requirement not to prosecute. Importantly, the ECtHR explained that prosecution of trafficking victims may, despite discretion for States under international law, breach Article 4’s positive operational duty:
It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future. Not only would they have to go through the ordeal of a criminal prosecution, but a criminal conviction could create an obstacle to their subsequent integration into society. In addition, incarceration may impede their access to the support and services that were envisaged by the Anti-Trafficking Convention. (para. 159)
Further, and of most significance looking forward, the ECtHR deemed early identification of victims to be: ‘of paramount importance’ (para. 160) for prosecutions to be Article 4 ECHR compliant. As victim status affects whether prosecution is in the public interest or evidentially viable, a trafficking assessment should be made by a competent body before a prosecution decision. This was thought all the more important in respect of children owing to their vulnerability. Crucially:
Once a trafficking assessment has been made by a qualified person, any subsequent prosecutorial decision would have to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing. (para. 162)
The Court’s Judgment – Application to the Facts
In VCL’s case, the ECtHR criticised the roles of the prosecutor and Court of Appeal at various points. At the time of arrest, there was already sufficient evidence about regular trafficking of Vietnamese minors into cannabis cultivation to demonstrate need for a trafficking investigation. The prosecutor was also, or should have been, aware of difficulties trafficked children face disclosing information. Therefore, VCL should not have been prosecuted in the absence of a trafficking assessment and, once identified as a trafficking victim, there were insufficient reasons to justify prosecuting. The ECtHR saw no cogent reason within the prosecutor’s account for disputing VCL’s conclusive trafficking decision, or for finding no nexus between his offence and trafficking. The Court of Appeal fell into error by following the prosecutor’s flawed reasoning.
Similar flaws appeared in AN’s case. Though he did not identify himself as a minor on arrest (as the ECtHR noted, he claimed to be 37 when 17 so it is surprising this was not queried), he gave sufficient information to indicate trafficking. In particular, he claimed to have been in a guarded factory locked from outside and to fear being killed if he stopped working. AN was, in any event, confirmed as a child 9 days after his arrest so there were clear trafficking indicators by that point. In reviewing AN’s case after the conclusive trafficking decision, the prosecutor gave no valid reason for departing from it. In dismissing AN’s appeal, the Court of Appeal relied on AN’s own failure to disclose trafficking, but that was contrary to the UK’s domestic policies confirming the State has a duty to identify victims, especially if prosecuting children.
In both cases, the ECtHR identified obvious trafficking indicators throughout, which the prosecutor and Court of Appeal gave no coherent reason to displace nor any reason why there was not a nexus between the trafficking and offending. The ECtHR concluded that operational measures should therefore have been, and were not, taken to protect VCL and AN. Ultimately, the Court concluded that both Articles 4 and 6 (right to a fair trial) had been violated. €25,000 was awarded to each for these breaches of the ECHR.
Commentary: a Blurry Distinction between Positive and Negative Obligations?
To recapitulate, though there is no general prohibition under the ECHR, (i) prosecutions of trafficking victims can cause harm, damage recovery and risk re-trafficking; (ii) early identification of victims is therefore vital, particularly for children; (iii) a competent trafficking decision concerning a potential victim should be made before a prosecution decision; (iv) a public prosecutor is not bound by a trafficking decision but must give cogent reasons if departing from it. Obligations (iii) and (iv) are framed as positive operational measures.
Judge Martens explained many years ago, in Gül v Switzerland: ‘Negative obligations require member States to refrain from action, positive to take action.’ (dissenting opinion, para. 7). One may think, on the face of it, that criminal prosecution clearly requires the State to refrain from acting. Simply, a State must not criminalise if doing so would breach Article 4 ECHR. However, Article 4 does not tend to describe direct State acts. The State does not usually engage itself in slavery or related practises any longer, (though States are still at times complicit as can be seen, as can be seen for example in the ECOWAS Court judgment of Koraou v Niger). It is also obvious that a criminal prosecution does not, by itself, constitute Article 4 harm.
Nevertheless, the ECtHR brought prosecution within the ambit of Article 4 precisely because prosecutions of trafficking victims can lead to harm, damage recovery and risk re-trafficking. Hence, it was not dealing here, as with prior trafficking judgments, only with a State’s failure to act or to criminalise. Instead, the issue was harmful prosecution by the State. If a victim was prosecuted and punished by the State for acts directly consequent on trafficking, we ought to ask whether the State to some degree caused or exacerbated Article 4 harm. A focus solely on positive operational duties neglects this. The ECtHR’s conclusion was, essentially, that the UK authorities failed to take operational measures to protect VCL and AN from prosecution by those same authorities. Intuitively this seems misguided and indicative of blurry lines between negative and positive duties. It does not adequately describe the UK’s responsibility for the harm suffered by VCL and AN. The ECtHR limited the damages awards because the ECHR violations ‘were essentially procedural in nature’ (para. 219), whereas the awards could have been higher had the UK’s direct responsibility for causing harm been explicitly recognised.
Negative obligations were not considered in the judgment, but the scope of positive obligations was. In addition to (i) ‘operational measures,’ both applicants had also alleged breaches of positive obligations to protect via an effective (ii) ‘legal and administrative framework,’ and to prevent trafficking by (iii) ‘procedural investigation.’ Only (i) was considered substantively. In respect of (ii), the ECtHR found it had: ‘no competence to interpret the provisions of the Anti-Trafficking Convention or to assess the compliance of the respondent State.’ (para. 113). Regarding (iii), alleged failures to investigate those responsible for trafficking VCL and AN were left undetermined at the European level as they had not been determined before the domestic courts. The ECtHR instead focused on the public prosecutor’s and Court of Appeal’s oppositions to decisions by the Competent Authority, which were deemed to be operational errors. It appears likely, however, that future cases will require substantive assessment of each of the positive obligations in the context of the prosecution of trafficking victims. Indeed, the ECtHR confirmed the importance of effective trafficking investigations and related domestic frameworks warrant scrutiny under Article 4 ECHR.
Conclusion
This is a hugely significant judgment for all Council of Europe member States. Protection against criminalisation represents the ‘beating heart’ of human rights obligations in the trafficking context. The judgment necessitates early identification of trafficking victims and requires States to investigate effectively before prosecuting potential victims. This will help to protect against further harm and reduce re-trafficking risks.
