Criminals or Victims?
Non-Criminalisation of Victims of
Human Trafficking
Peter Carter QC
18 Red Lion Court
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Role & Possibilities of International
Law
Vienna Convention on the Interpretation of Treaties 1969
Article 18 - Obligation not to defeat the object and purpose of a treaty prior
to its entry into force
A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval, until it shall have made
its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly
delayed.
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Trafficking as an international crime
• The Rome Statute of the International Criminal Court
includes “rape, sexual slavery and enforced prostitution”
among the list of crimes against humanity by Art 7 (1)
(g) and as a war crime by Art. 8 (2) (b) (xxii). Enslavement
is a crime against humanity [Art 7 (1) (c)].
• Kunarac, IT-96-23 & 23/1-A, 12th June 2002 @ [115]
to [124]
• Both crimes against humanity and war crimes require
there to be an armed conflict and for the offence to be
“widespread and systematic” (crimes against humanity)
or “part of a plan or policy or as part of a large-scale
commission of such crimes” (war crimes).
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Trafficking as an international crime
• However, much trafficking will not be in the context
of armed conflict. In some cases the opportunity for
trafficking may result from displacement due to
conflict.
• Our courts should be alert to that possible
background.
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Reaction of Court of Appeal to these
still novel arguments
R v O : Sept 2008 [2008] EWCA Crim 2835 – Laura
Cox J (leave); Laws LJ (Ct Appeal)
• Use of international instruments as part of
English law • Vienna Convention on Interpretation of Treaties.
UK had signed but not ratified Council of Europe
Trafficking Convention. Effect. Convention has
subsequently been ratified by UK on 17th
December 2008.
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Reaction of Court of Appeal to these
still novel arguments
• R v LM – no “blanket immunity” – leave it to CPS
• R v N; R v Le – Court was resistant to large amount of
informative material. The Court adopted narrow
interpretations of “trafficking” and “exploitation” and
dealt with the appeal as an Art 6 ECHR issue. We
argued that N should not have been prosecuted; that
any trial was therefore unfair and the conviction
unsafe. We lost. The Court refused to certify a question
for the Supreme Court. The result – a challenge to a
prosecutor’s decision is confined to abuse of process
jurisdiction with all the limitations of that remedy.
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Reaction of Court of Appeal (2)
• Cf – different Court in Henderson [2010] EWCA Crim 1269
(baby shaking case) – Moses & Rafferty LJJ praised Michael
Topolski QC for diligence & thoroughness of research & for
breadth of material provided.
• In R v Waya [2012] UKSC 51 @ [18]. [10] & [33] the Supreme
Court declared that abuse of process is not the appropriate
way to challenge prosecutors’ decisions that offend
Convention rights. Lord Judge, CJ, was party to that decision
having ruled the opposite in R v N.
• R v T; R v L – Parosha’s cases – convictions quashed, reasons
awaited (as at 30th May).
Non-criminalisation
• The defence of duress – See CPS Guide. It is an
inappropriate test, especially for children.
• No absolute immunity? There is an argument that there are
offences so serious that it is disproportionate to allow
trafficking to provide a complete defence. However, even
in the gravest crimes, e.g. murder, there should be a
procedure to reduce it to manslaughter where trafficking is
a contributing factor.
• Should any defence be confined to a “trafficking–related”
offence; or to an offence committed as a consequence of
the trafficking; or to one committed by a person who has
been a victim of trafficking?
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Non-criminalisation (2)
• Moving from perpetrator to victim; cf child abuse
cases. What is the appropriate threshold? Is the status
of a defendant as a victim adequately addressed by
mitigating
sentence
rather
than
by
noncriminalisation? Is that really what Art. 26 means?
• Art 8 EU Directive provides protection for victims
amounting to immunity from prosecution. Why did the
common law fail to do this?
• Importance of victims as witnesses and identification
at an early stage of an investigation.
• What happens to victims afterwards? Deportation?
Further trafficking? Death?
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Non-criminalisation (3)
• Should the decision about whether to
prosecute be left to the discretion of a
Prosecutor? Or
• is it essential that the Court oversees the
prosecutor’s decision to ensure it gives effect
to the rights of victims of trafficking?
• The required test is not that applied to abuse
of process, nor is it the Wednesbury judicial
review test.
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Non-criminalisation – Conclusion
• The consequence of Art 8 of the EU Directive
which has direct effect in the UK and
augments Art 26 of the Trafficking Convention
and Art 4 ECHR is that a victim of trafficking
has a right not to be prosecuted for an offence
committed as a consequence of the
trafficking.
• It is not a test of proportionality.
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Non-criminalisation – Conclusion (2)
• The right must be protected by the courts.
There is no room for restricting oversight of a
prosecutor’s decision to the unduly restricted
abuse of process jurisdiction – see the UK
Supreme Court in R v Waya [2012] UKSC 51
@ [18]. [10] & [33] (in a different context).
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Non-criminalisation – Conclusion (3)
• Even where Art 8 does not apply, but the offence
has a trafficking background (rather than cause or
context), non-prosecution and leniency should be
considered. That is the only role for
proportionality.
• The status of victims of trafficking must be
protected by police and prosecutors using a
rights-based approach, and the protection must
be enforced by the courts as independent
upholders of the rule of law.
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