Victims or Criminals: The Example of Human Trafficking in the United Kingdom
© Springer International Publishing Switzerland 2015
Maria João Guia (ed.)The Illegal Business of Human Trafficking10.1007/978-3-319-09441-0_88. Victims or Criminals: The Example of Human Trafficking in the United Kingdom
(1)
University of the West of England, Bristol, UK
Abstract
Following the drafting of the Council of Europe Convention on Action against Trafficking in Human Beings, 2005, it would seem that a more victim-focused, victim-centric approach is being taken toward the individuals who fall foul of this transnational phenomenon than previously has been the case. The more encompassing provisions of this Convention, when compared to the somewhat weak provisions enshrined in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000, provide for various bespoke rights such as rest and recovery periods and temporary residence permits for those subject to its provisions.
Of particular note is Article 26 of the Convention, which provides for “non-punishment” of victims where their involvement in unlawful activities can be attributed to the fact that they have been trafficked, namely that they were compelled to commit the relevant offence in the course of/as a result of having been trafficked. This provision of the Convention is drafted in nonbinding terms, and therefore ratifying States can decide exactly how they wish to proceed on this particular matter. Non-punishment can only be actively considered if the individual in question has at least been identified as a putative victim of trafficking—identification being dealt with by Article 10 of the Convention.
The United Kingdom has, within its anti-trafficking framework, a National Referral Mechanism for the identification of victims, and two Crown Prosecution Service Protocols, which provide for prosecutorial discretion where victims of human trafficking have committed criminal offences as result of having been trafficked. This chapter aims to analyse, through the lens of both the UK’s implementation of Article 10 and 26 provisions and a series of recent case law decisions of the domestic courts, the applicability of both the Convention and these Protocols to victims of human trafficking in order to determine whether such individuals in fact are being properly treated as victims or as criminals.
8.1 Introduction
Human trafficking is a serious international crime. Trafficking takes place for, among other things, the purposes of sexual and labour exploitation (Scarpa 2008) and is a large-scale and lucrative activity (Malarek 2004, p. 13). Brussa (1991, pp. 42–43) identifies profitability and organised crime as being among the prevalent reasons for the continual rise in trafficking. In many situations, trafficking will begin on a consensual footing (Aronowitz 2001, p. 164) where a migrant chooses to leave his country of origin and falls into the hands of traffickers. Others are kidnapped through means of physical force or deceived into taking up a false offer of employment. Trafficked victims originate from a vast range of countries, regions, and backgrounds (Aronowitz 2001, p. 166; Europol 2006). Efforts to effectively combat trafficking must target not only prevention, prosecution, and punishment but also the protection of and assistance to the victims of this phenomenon.
The currently accepted international legal definition of “trafficking in persons” is provided by Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2000 (UN Trafficking Protocol), and replicated verbatim in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (Council of Europe Trafficking Convention). More recently, this definition has been, for the most part, replicated verbatim in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, 2011 (the 2011 Directive), which includes the additional aspect of begging as a form of “forced labour or services”. This definition provides the following:
Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
According to this definition, trafficking has three elements: the “action” of, say, recruitment, through some form of “means”, such as coercion or force, for a “purpose”, which is broadly categorised as “exploitation”. The definition goes on to state that “… the consent of a victim … shall be irrelevant where any of the means … have been used”. Where the victim is a child (i.e., under 18 years of age), it is not necessary to show that any of the stated “means” have been used.
Trafficking can be distinguished from smuggling on various bases, although at times the two are conflated or at least confused. Smuggling is defined by the United Nations as
…the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. (Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime 2000)
According to these definitions, it can be seen that smuggling does not involve the elements of coercion, force, or exploitation that trafficking involves. When it comes to smuggling of humans, there is no perceived victim as the actions of the smuggled person are viewed as voluntary. This distinction is important, as smuggled persons do not have access to the bespoke regime of rights and assistance that trafficked persons and putatively trafficked persons have available to them.
Following the drafting of the Council of Europe Trafficking Convention, ratified by the United Kingdom in 2009, it would seem that a more victim-focused, victim-centric approach is being taken toward the individuals who fall foul of this transnational phenomenon than previously has been the case. The more encompassing provisions of this Convention, when compared to the somewhat weak provisions enshrined in the UN Trafficking Protocol, provide for various bespoke rights such as rest and recovery periods and temporary residence permits for those subject to its provisions.
The Council of Europe Trafficking Convention has three key aims: the prohibition and prevention of trafficking in persons, the investigation of trafficking activity and the prosecution and punishment of traffickers, and, finally, the protection of victims of trafficking (The Law Society 2011). The latter is the chief concern of this chapter, particularly in terms of the (in)correct identification and subsequent criminalisation of trafficked persons—an issue that has become apparent through examination of domestic case law (Elliott 2009; R v O [2008]; R v LM and others [2010]; R v N and LE [2012]).
Of particular note here is the theme of “crimmigration”—the “convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society” (Stumpf 2006, p. 1). Sometimes, trafficked persons may be arrested and charged with criminal offences that were committed through compulsion arising as a result of the trafficking situation. According to the Crown Prosecution Service, “This most frequently arises when they have been trafficked or smuggled here to commit criminal offences, but can arise in circumstances where they are escaping from their trafficking situation” (CPS 2011, p. 30).
There is clearly a possibility that some adults and children who have been arrested and charged with committing criminal offences might be victims of trafficking and might have committed the offence(s) in question as a result of compulsion arising from the trafficking situation. Sometimes victims are trafficked to commit criminal offences, including the following: causing or inciting/controlling prostitution for gain (provided for in Sections 52 and 53 of the Sexual Offences Act 2003), keeping a brothel (Section 33 or 33a of the Sexual Offences Act 1956); theft in organised pick-pocketing gangs (section 1 of the Theft Act 1968), or cultivation of cannabis plants (section 6 of the Misuse of Drugs Act 1971). For example, children are trafficked for forced criminality (ECPAT 2010) such as working in cannabis factories (R v. N and LE [2012]) or for street crimes and forced begging (2011 Directive, Article 2).
Alternatively, the possession of false identity documents—which may be being used in order to escape the trafficking situation, such as in R v O [2008]—is a frequent basis for criminality. Victims may be apprehended by law enforcement agencies where they are attempting to escape from their traffickers, the most typical example being immigration offences: using a false instrument (section 3 of the Forgery and Counterfeiting Act 1981), possession of a forged passport or documents (section 5 of the Forgery and Counterfeiting Act 1981), possession of a false identity document (section 6 of the Identity Documents Act 2010), or failure to have a travel document at a leave or asylum interview (section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004). As a result of these myriad opportunities for criminal sanction to be imposed, trafficked victims will at times be treated not as victims but predominantly or exclusively as criminals.
Article 26 of the Council of Europe Trafficking Convention provides for the potential (but not obligatory) “non-punishment” of victims where their involvement in unlawful activities can be attributed to the fact that they have been trafficked, namely that they were compelled to commit the relevant offence in the course of/as a result of having been trafficked. The criminalisation of victims for offences committed as a result of serious compulsion is incongruent with one of the central aims of the Convention: that of protecting victims. This provision of the Convention is drafted in nonbinding terms so that it does not impose a duty of non-punishment. Instead, it creates a duty of active consideration as to whether or not prosecution of a victim should proceed in any given case. Therefore, provided that a mechanism for active consideration is in place, ratifying States can decide exactly how they wish to proceed on this particular matter.
In order for the Article 26 duty to be triggered, the individual must be at the very least identified as a putatively trafficked victim. The identification of trafficked victims is addressed in Article 10 of the Council of Europe Trafficking Convention. The point of interest here is that the identification of victims and the criminalisation of victims are intrinsically linked, i.e. if a trafficked victim is not identified as such (or even as a putative trafficked victim), then the corollary is that he may well be subject to criminal sanction due to the commission of offences as a direct result of the trafficking situation. The identification point is essential, as there is the potential for a wealth of difference in treatment between a trafficked victim who has committed offences and the offender who may be viewed as “just another smuggled migrant”. As the case law will indicate, even where victims are positively identified as trafficked, the Article 26 duty has not always been adequately discharged in the domestic courts.
This chapter will analyse the implementation and (lack of) consideration of the duty to consider non-punishment of victims in the UK, drawing upon a series of recent and prominent domestic decisions that exemplify the current problems arising here. With ratification (by the UK) of the Council of Europe Convention being in the not-too-distant past, it seems that awareness of the non-punishment principle may be somewhat lacking. Furthermore, it seems that awareness of the existence of human trafficking among the relevant professionals who come into contact with putative victims is also lacking, leading to misidentification in some instances that only serves to fuel the problem of victims being treated as criminals. As the questionable conviction of trafficked victims at first instance continues to occur, an increasing need for the UK to raise the bar as regards the recognition and treatment of these victims is becoming apparent.
8.2 Identification of Trafficked Victims
Article 10 of the CoE Trafficking Convention provides:
Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims.
In response to this obligation, the UK has in place a “National Referral Mechanism” (NRM) to facilitate victim identification. Under this mechanism, indicators (a list of which is provided by, inter alia, the UK Border Agency and Anti-Slavery International 2005) are used by front-line professionals (known as “First Responders”, listed by the Serious Organised Crime Agency) to help identify putative victims, before referring their details on to a designated “Competent Authority”, who are charged with making a decision (usually within 5 days) as to whether there are “reasonable grounds” to believe that an individual has been trafficked (Home Office 2008, p. 3), following which a 45-day rest and recovery period will be available to the putative victim until a “conclusive grounds” decision is reached as to whether or not the individual is in fact a trafficked victim.
Examples of “Competent Authorities” are given in the Explanatory Report to the Convention as “…public authorities which may have contact with trafficking victims” (Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings 2005, paragraph 129). The NRM has been in place in the UK since 1 April 2009, and the relevant designated competent authorities are the UK Border Agency (UKBA) and the UK Human Trafficking Centre (UKHTC), to whom guidance on victim identification has been issued (Home Office/UK Border Agency 2012a). Guidance has also been issued to police and immigration officers to aid them in identifying potential trafficked victims (Home Office/UK Border Agency 2012b). There is no formal route of appeal where a negative decision is reached, which leaves those cases which are wrongly decided with little open to them save judicial review.
Although the formal NRM process requires that identification is carried out by designated authorities at all stages, the identification of trafficked victims clearly places the responsibility on other professionals with whom the victim comes into contact, such as legal counsel, who must be alert to possible signs that an individual has been trafficked. It cannot be assumed that the professionals responsible for identification of victims under the NRM will always encounter the victim at a sufficiently early stage to identify her prior to any criminal proceedings being initiated against her. Multiple deficiencies and failing in the identification process, which largely centre around lack of awareness (of trafficking) by officials, are evident in the domestic case law (R v. N and LE [2012]; R v O [2008]; OOO et al v Commissioner of Metropolitan Police [2011]). Those who are not identified as trafficked/putatively trafficked do not have the opportunity to benefit from the active consideration that prosecutors must give when determining whether or not to proceed with prosecution against a trafficked/putatively trafficked person for offences committed by that person as a result of compulsion arising from the trafficking situation. Therefore, it is imperative that putative and genuine victims of trafficking are expeditiously identified as such.
8.3 The Non-punishment Principle
Article 26 provides:
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.
For the sake of clarity, it is worth establishing from the outset what Article 26 does not do. In the case of LM, MB, DG, BT and YT [2010], the following was recognised:
It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims. (R. v LM and others [2010], paragraph 13)
In order for the “non-punishment” principle enshrined in Article 26 of the Council of Europe Trafficking Convention to come into play, the individual in question must first be correctly identified as a trafficked victim or, at least, a suspected trafficked victim. Where misidentification occurs, the outcome can be dire (Elliott 2009; R v O [2008]), and a string of decisions (R v O [2008]; R. v. LM and others [2010]; R v. N and LE [2012]) over the past 5 years has compounded the need for prosecutors, defence lawyers, the police, and all other relevant parties coming into contact with the putative victims to be proactive and vigilant with respect to victim identification and causing enquiries as to identification to be conducted.
The problems surrounding victim identification are manifold, not least due to the different and at times subtle forms of coercion employed by traffickers (as opposed to outright violence)—identified by Brown (2001) in testimonies provided by victims—which can mask victim status. Furthermore, victims may fail to self-identify (Home Office 2009; U.S. Department of Health and Human Services 2009, p. 18; Drew 2008) as a result of fear; lack of knowledge/understanding that they have been trafficked; post-traumatic stress, which is not infrequently experienced as a result of the trafficking situation (Ramage 2006, p. 7); or some other reason. Consequently, the deficiencies in the identification process and the failures at first instance to actively consider the Article 26 duty clearly need to be addressed so that a more robust, victim-centric regime is in place, which allows victim access to the bespoke rights and assistance that the anti-trafficking regime confers upon those who are formally identified as trafficked.
8.4 Application of the Non-punishment Principle in the United Kingdom
The United Kingdom has, within its anti-trafficking framework, two Crown Prosecution Service Protocols, which provide for prosecutorial discretion where victims of human trafficking have committed criminal offences as result of having been trafficked. These Protocols provide guidelines on “Prosecution of Defendants Charged with Offences Who Might Be Trafficked Victims” and “Prosecution of Young Defendants Charged with Offences Who Might Be Trafficked Victims” (CPS 2012). These guidelines serve to provide for active consideration as to whether or not to prosecute in any given case involving a trafficked victim. The CPS states:
If … the suspect has been trafficked and committed the offence whilst they were coerced, consider whether it is in the public interest to continue prosecution. Where there is clear evidence that the suspect has a credible defence of duress, the case should be discontinued on evidential grounds… (CPS 2012)
When cases potentially engaging these protocols arise, it is imperative that prosecutors and other relevant professionals must be aware of the possibility that the individual concerned may be a victim of trafficking. This may involve taking into account information from other sources that a suspect might have been trafficked, for example from nongovernment organisations (NGOs) that support trafficked victims. There is also a responsibility on the police officers coming into contact with putative victims to take certain steps to ensure that identification can proceed. It will, for example, be necessary to enquire into and obtain information regarding the circumstances surrounding the suspect’s apprehension (CPS 2012