Tuesday 25 Jun 2013 @ 11:26
Equality and Human Rights Commission (EHRC)
Equality and Human Rights Commission (EHRC)
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Court of Appeal rules that full investigation is key in decisions to prosecute victims of trafficking
Child victims of human trafficking who commit a crime could have charges against them dropped if they can prove that the offence was committed as a result of exploitation, following a Court of Appeal case in which the Equality and Human Rights Commission intervened.
Today's ruling follows an appeal against the conviction of T, a 14-year-old Vietnamese boy, who was forced to work in a cannabis factory after being trafficked to England in the back of a refrigerated lorry. The Court of Appeal scrubbed T’s conviction and that of three other trafficking victims, whose cases were heard together.
He was arrested following a raid on the factory and sentenced to 12-months in a Youth Offender Institute after eventually pleading guilty, although police had referred his case to the National Referral Mechanism, a framework for identifying and supporting victims of trafficking.
T began to self-harm and was eventually re-assessed after the NSPCC intervened. He was then transferred to local authority care. However, he went missing and is now suspected to be back with his traffickers. In the Commission’s view child victims of trafficking should be given support, assistance and protection and not further victimised by being prosecuted.
The Equality and Human Rights Commission intervened in the case at the Court of Appeal as an independent third party expert on human rights. It said trafficking was a modern-day form of slavery and growing problem in the UK. In 2011 up to 500 children were thought to be involved (1). Minors are more likely to be prosecuted than their controllers.
The Court accepted the Commission’s submission that there is that is a heavy onus on the authorities to thoroughly investigate trafficking allegations, so that unnecessary prosecutions do not happen. Its judgment further reflected the Commission’s arguments that the Court has the power to stay proceedings where it had not been presented with enough evidence about the age of the defendant and whether they have been a victim of trafficking.
The Court said that the test regarding a prosecution decision was:
The Court accepted the Commission’s submission that there is that is a heavy onus on the authorities to thoroughly investigate trafficking allegations, so that unnecessary prosecutions do not happen. Its judgment further reflected the Commission’s arguments that the Court has the power to stay proceedings where it had not been presented with enough evidence about the age of the defendant and whether they have been a victim of trafficking.
The Court said that the test regarding a prosecution decision was:
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Is the victim a child? There must be a determination of age.
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Are they a victim of trafficking?
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Was the crime consequent on and integral to the exploitation they were subject to? I.e. is it a manifestation of the exploitation?
Commission deputy director, legal, Wendy Hewitt said:
“Trafficking is a modern-day form of slavery and a serious violation of human rights. This judgment will have a significant effect on the way child victims are dealt with by the criminal justice system and reinforces the fact that a primary concern must be the best interests of the child.“The court has made it clear the relevant authorities must properly investigate these cases before pressing charges, especially where children are involved. If it is not satisfied the court can stay the matter until this has been done.”
Ends
Notes to Editors
R v (1) L (2) HVN(3) THN(4) T-and-(1) The Children’s Commissioner for England (2) Equality and Human Rights Commission (interveners) Criminal Court of Appeal 201201106B2, 2012004425C1, 201204763B3, 2012 04966B4
(1) This case follows the Commissions Human Trafficking Inquiry conducted in Scotland and its follow-up report. These identified concerns relating to the UK’s compliance with the prohibition on slavery, servitude and forced or compulsory labour set out in Article 4 of the European Convention on Human Rights.
http://www.equalityhumanrights.com/scotland/human-rights-in-scotland/inquiry-into-human-trafficking-in-scotland/
http://www.equalityhumanrights.com/scotland/human-rights-in-scotland/inquiry-into-human-trafficking-in-scotland/human-trafficking-inquiry-follow-on-report/
http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/protection-from-slavery-and-forced-labour/
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Article 26 of the Council of Europe Anti-trafficking Convention, which the UK has ratified, gives the state the discretion not to prosecute victims of trafficking where they have committed an offence whilst under the control of their trafficker. This Convention fleshes out how human rights articles are put into practice
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Article 8 of the 2011/36 EU Directive mirrors the Convention on this and was in effect as of 6 April 2013
