“You have amongst you many a purchas’d slave,
Which like your asses, and your dogs and mules,
You use in abject and in slavish parts,
Because you bought them.”
William Shakespeare
Shylock speaking in The Merchant of Venice Act 4 Sc1.
The Non-Prosecution of Victims of
Human Trafficking
Some experiences from England & Wales
His Honour Judge Martin Edmunds QC
The Crown Court at Isleworth
Pam Bowen
Crown Prosecution Service
Warning
 This presentation applies only to England and Wales
 (Scotland and Northern Ireland have the same policies but
some differences in procedure and personnel).
 It focuses on prosecutions conducted by the Crown
Prosecution Service. These are the vast majority but other
agencies also conduct prosecutions.
 On the procedural issues dealt with in the presentation there
are many exceptions not covered. This presentation is not
intended to cover all circumstances.
Structure of the Criminal Courts
Magistrates
Crown Court
• All cases start here and most are concluded in this Court
• More serious cases or cases where the Magistrates’ sentencing
powers are in adequate get sent to the Crown Court.
• One professional District Judge OR three Lay Magistrates with a
legal advisor.
• Deals with the more serious offences
• The Judge is a Circuit Judge or for very serious offences a High
Court Judge.
• For trials the Judge sits with a Jury of 12 people. The Jury decides
the facts. The Judge advises on the law and determines sentence.
A Circuit Judge
Sitting with a Jury………….
The Roles in England and Wales
Police
CPS
Court
• The Police investigate the alleged crime.
• The Police seek the advice of the Crown Prosecution Service on what further
evidence is required and what offence to charge.
• Crown Prosecution Service advise the Police on evidence and charge.
• CPS present the prosecution case in Court.
• The Court decides whether the evidence presented by the Prosecution
establishes guilt and, if so, determines sentence.
• The Judge DOES NOT have an investigatory role NOR (in most cases) a
discretion in the decision to prosecute.
The CPS Prosecutor’s test for ALL
cases
TEST
• The Full Code Test has two stages: (i) the evidential
stage; followed by (ii) the public interest stage.
Stage 1
• Prosecutors must be satisfied that there is sufficient
evidence to provide a realistic prospect of
conviction against each suspect on each charge
Stage 2
• In every case where there is sufficient evidence to justify a
prosecution, prosecutors must go on to consider whether
a prosecution is required in the public interest.
The Decision where the accused is
suspected to be a victim of trafficking
Police
• Police may refer to the CPS for consideration of prosecution or
• May divert a clear case out of the criminal system
• CPS consider the Prosecutor’s Test
CPS
Court
• Where there is suspected trafficking apply the protocol – after consideration by the
National Referral Mechanism
• Court Stage
• If the CPS decide to proceed the Judge may nevertheless stay the proceedings as an
abuse of process if the Judge determines that Article 8 criteria are met.
The Prosecution Protocol
The Three stage Test
1
2
3
• Is there a reason to believe the person has been trafficked ? There is a duty to
make proper enquiries through the Police and (with the consent of the suspect)
the National Referral Mechanism.
• If there clear evidence of a credible common law defence of duress the case
should be discontinued on evidential grounds
• Even where there is no clear evidence of duress, but the offence may have been
committed as a result of compulsion arising from trafficking prosecutors should
consider whether the public interest lies in proceeding to prosecute or not.
CARE: “Duress” and “Compulsion”
are Different in E&W law
 “Duress is a defence (except to murder and manslaughter) if
the offence has been committed as the direct (not indirect)
result of a threat of death or serious injury aimed at the
defendant or someone sufficiently close to him. But the
defence is not established if there was evasive action which
the defendant could take, including report to the authorities;
and nor can it be established if the defendant has voluntarily
associated with people in circumstances which amount to
laying himself open to the compulsion to commit offences”.
R v M(L) and others [2011] 1 Cr App R 12
“Compulsion”
 “that they have been compelled to commit as a direct result
of being subject to [trafficking]
Article 8
 “Is the real perpetrator of this crime the trafficker not the
defendant”
Parosha Chandran
 “no realistic alternative was available to the exploited victim
but to comply with the dominant force of another
individual..... The extent to which the crime alleged against
him was integral to the exploitation of which he was the
victim… a manifestation of the exploitation”
R v L/THN [2013] EWCA Crim 991
The Court’s Role
 In June 2013 there was a key change with the decision of the
Court of Appeal in L; HVN;THN; and T [2013 EWCA Crim 991
 “In the context of an abuse of process argument on behalf of
an alleged victim of trafficking, the court will reach its own
decision on the basis of the material advanced in support of
and against the continuation of the prosecution. Where a
court considers issues relevant to age, trafficking and
exploitation, the prosecution will be stayed if the court
disagrees with the decision to prosecute.”
Lord Judge, Lord Chief Justice
Key Advances
Clear recognition of the difference
between Common Law Duress and
Article 8 Compulsion
Clear decision making structure – so
that if the CPS decide to proceed
with a prosecution that decision can
be challenged in the Court
Where can there be a review if the
situation has not been recognised?
Crown Court
Court of
Appeal
CCRC
• Crown Court
• May allow a change of plea if the issue is raised after plea but
before Sentence
• Court Of Appeal
• May allow appeal even when there has been a plea of guilty
• Criminal Cases Review Commission
• After normal time for appeal has passed may refer a case
back to the Court of Appeal.
Next steps – The Modern Slavery Bill
 Going through Parliament NOW
 Clause 39 – creates a statutory defence for persons
compelled to commit an offence.
 Long list of offences are excluded.
 It remains to be seen whether it will pass in its current form.
Challenges
Awareness amongst professionals
Communication – Language and Trust
Assessment of true age
Awareness amongst the trafficked
Prosecutor Defence solicitors NGO Police UKBA Competent Authority -
Police UKBA -

Crime
scene

Interview
Police UKBA Defence solicitors Interpreter Social Services (where suspect is child)

Charging
Prosecutor/advocate Defence advocate Magistrate District Judge Immigration Judge Crown Court Judge Youth Offender Teams Competent Authority -

Preparation
Prosecutor Defence solicitors NGO Competent Authority -

Court
Legal representative Prison Officers Outreach worker Competent Authority -

Conviction
Prosecutor/advocate Defence advocate Judge Probation officer –
Youth Offender Teams -

Postsentence