April proved to be a trying month for the UK Government’s relationship with Europe on the issue of human trafficking. The deadline for the implementation of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims was in mid-April and, as organisations such as ECPAT have been advocating, the Government is continuing to fail to put in place adequate measures to protect victims of trafficking from prosecution. The Directive establishes minimum rules concerning the definition of criminal offences and sanctions in human trafficking and seeks to improve the protection of victims. An examination of recent cases before the Court of Appeal have shown that implicit in the UK’s approach to this issue is the fact that victims are not being identified at an early enough stage in the criminal justice process.
The Guidance for the Crown Prosecution Service places an emphasis on the need, by prosecutors, police and other front-line service providers, to effectively and quickly identify victims of trafficking. However, the Centre for Social Justice’s recent report into human trafficking in the UK found
unacceptable levels of ignorance and misidentification of victims among the police, social services, the UKBA, the judicial system and others whose responsibility is to identify victims and ensure they are protected.
As a result, such professionals rely on victims to self-identify as trafficked. However, considering the huge challenges faced by victims, for example, broader fears about state authorities (to say nothing of the dependence on victims to recognise that they are “victims”), this is problematic. It is also disappointing when one considers that anti-trafficking training has been embedded within front-line services for a number of years now – how can there still be such substantive issues with victim identification? Especially considering that the Government recently claimed, in response to a Parliamentary Question, that
All new police officers receive mandatory training on trafficking and existing officers have access to awareness material. In England and Wales over 18,000 police staff have completed an e-learning package on human trafficking. Many forces also have their own human trafficking training.
There are, according to the Home Office, 134,101 full time police officers in England and Wales – showing that, although 18,000 officers trained is a significant number, when compared to the total number of officers, this number is actually very small. The Centre for Social Justice notes that “some forces have reported that just two officers in the force have undergone this online training”. Further, there is no guarantee as to the quality of the training as the answer above seems to indicate that some police forces have developed their own human trafficking training. The problems encountered in England and Wales contrast with a recent announcement by the new amalgamated Scottish police force, Police Scotland, which in early April stated their commitment to a “new approach aimed to identify victims of human trafficking rather than criminalising them”. This geographic disparity in treatment further undermines the concept of “joined up thinking” across services and across regions, on effective responses to trafficking and exploitation.
Article 8 of the Directive states “competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities” (emphasis added). This resonates with the provision of Article 26 of the Council of Europe Convention against Trafficking which states
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. (emphasis added)
In both of these provisions, the discretion as to whether to provide immunity from prosecution is left with the States. The result is a lack of a coherent policy on whether victims of trafficking should be prosecuted for related offences, and, if they should be prosecuted, the kinds of penalties which should be applied.
The UK has struggled with this issue, most pertinently in the case of Vietnamese children trafficked for cannabis cultivation. These children are currently the largest group of minors trafficked for labour exploitation in the UK referred to the National Referral Mechanism, as set out in the report last year undertaken by the Inter-Departmental Group on Trafficking. In the recent case of R v N & R v LE  EWCA Crim 189, concerned the safety of the convictions of two minors for drug production offences, who were later identified as victims of trafficking. The appeal against the conviction was dismissed, while the appeal against the sentence was allowed. The Court focused on the fact that the Crown Prosecution Service was given the discretion to decide if to prosecute, noting that Article 26 of the Trafficking Convention does not provide for blanket immunity. At para 13, the Court outlines its approach to Article 26 and concluded that
The language of Article 26 is directed at the sentencing decision rather than the decision to prosecute. It does not provide that penalties should not be imposed on victims of trafficking in a broad general way; the possibility of not imposing penalties is related to criminal activities in which the victims of trafficking have been compelled to participate in circumstances in which the defence of duress is not available.
The Court decided that, on the basis of the facts of the case, the two victims had not been compelled to work on the cannabis farms. Indeed, at para 12, they considered the concept of creating “a new form of immunity … or to extend the defence of duress by removing the limitations inherent in it…. would be fallacious.” The case has subsequently been referred to the European Court of Human Rights. The message, perhaps inadvertently sent by this judgment, is that identification as a victim will not necessarily protect you from prosecution. This message could thus be used by traffickers to further control victims and inhibit them from seeking assistance.
In the case of Case of R v HTB  EWCA Crim 211, a 17 year old girl was trafficked to the UK and exploited for cannabis cultivation; she was convicted of drug offences and sentenced to 20 months of imprisonment. In the judgment of the original trial, the judge commented that
The court is facing these days many instances of Vietnamese girls being trafficked into the United Kingdom to work on cannabis farms. Counsel has made it clear to me that the sentencing guidelines suggest a starting point in the region of three years after trial. You have pleaded guilty and I give you full credit for your plea of guilty. The shortest sentence I can pass on all the circumstances on you is of 20 months.
The case highlights many of the fundamental problems in the UK in relation to the failure to identify victims. The judge recognised that the offender is under 18 (“girl”) has been exploited (“trafficked”) and that this case is not unusual (“many instances”) and yet no question is raised at the decision to prosecute. The emphasis made in the judgment upon the sentencing guidelines, rather than the facts of the case, speaks to the paucity of knowledge within the judiciary, and broader criminal justice system, as to how to deal with such cases. These issues are not only found in cases of Vietnamese minors.
Research by the Institute of Criminology at the University of Cambridge focused on the criminalisation of migrant women found that
Only one quarter (11) of the 43 women identified by researchers as having been trafficked were processed through the NRM [National Referral Mechanism], and two of these women were not processed until after their sentence was completed. Even where referrals were made to the NRM that resulted in a positive decision and non-prosecution, the victims spent on average four months in custody. … For the others there was no formal recognition of their victim status and no access to appropriate support or temporary protection from deportation other than going down the route of applying for asylum. (emphasis added)
Four months in custody is surely an unacceptable time period for women to remain in custody without adequate support. A supporting briefing by the Prison Reform Trust recommended that a national strategy on the management of foreign women in the criminal justice system should consider the extent to which a
woman had freedom of choice in her involvement in the offence, by ensuring evidence of coercion, exploitation and duress is examined, should be integral to all sentencing decisions within criminal justice proceedings with women, in compliance with CEDAW32 [UN Convention on the Elimination of Discrimination against Women] and the United Nations Protocol to Protect Victims of Trafficking.
The research recognizes the particular vulnerabilities faced women migrants in the criminal justice system, but omits any consideration of the criminalisation of male migrants. The absence of research on this group, unfortunately, and perhaps unintentionally, perpetuates the view that trafficking and exploitation is a crime primarily suffered by women. However, the most recent figures from the Serious and Organised Crimes Agency show that between July and September 2012, of the 95 people referred to the NRM as victims of labour exploitation, 85 were men. This thus speaks to the need to evaluate the treatment of men within the criminal justice system including an examination of the identification of victims at all stages of the process.
Maria Grazia Giammarinaro, the Organization for Security and Co-operation in Europe’s (OSCE) Special Representative and Co-ordinator for Combating Trafficking in Human Beings, issued 29 policy and legislative recommendations to stop the prosecution of trafficking victims. She emphasized the importance of identifying trafficking victims in preventing wrongful prosecutions. She considered the non-punishment principle to be integral to a human rights based approach to trafficking which echoes the positive obligation on States to protect victims. While Giammarinaro’s contribution is welcomed, she only made recommendations – again leaving discretion to individual States. At para 27, she draws attention to a key point often missed in such discussions
The obligation of non-punishment is therefore intimately tied to the State’s obligations to identify, protect and assist victims of trafficking and also to the State’s duty to investigate a trafficking situation with a view to identifying the trafficker and seeking to bring the true perpetrator to justice.
There is a serious need to focus the attention of the criminal justice system on the actual criminals, the traffickers themselves, rather than pursuing victims. Central to achieving this goal is a re-vamp of the training given to front-line officers. As the response to the Parliamentary Question highlights, there are clearly too few police officers trained in effective victim identification and a lack of coherence in the training given. At the very least, there is merit in advocating a re-focus of the current training given so that not only the identification of victims is improved, but also the identification of traffickers themselves. Moving to the consideration of the non-prosecution of victims, the UK’s approach to this issue seems unnecessarily rigid. The emphasis found in the recommendations from the OSCE should be seriously considered and a broader commitment to the implementation of Directive 2011/36/EU sought by Government. It does the UK’s reputation little good to seemingly ignore the specific protections which should be provided to victims of human trafficking to say nothing of the harm wrought on victims themselves.