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There is a fine line between corporate exploitation in supply chains and organised crime. Increasingly the requirements for corporate reporting under the Modern Slavery Act 2015 (MSA 2015) give rise for the need to consider criminal liability. Felicity Gerry KC focusses on the criminal justice aspects of the ‘county lines’ issues.
According to the Children’s Society in the UK, “no one really knows” how many young people across the country are being exploited through the phenomenon known as ‘county lines’, but the Children’s Commissioner has estimated that there are at least 46,000 children in England who are involved in gang related activity, including some 4,000 teenagers in London. There are currently no figures for vulnerable adults. The issues give rise to complexities for criminal practitioners as vulnerable adults and young people who are accused of committing crime in these circumstances may also be victims of human trafficking. Trafficked victims are identified as those persons who are exploited at the hands of their traffickers and victims of the criminality as defined by the United Nations Palermo Protocols. This wide definition is reflected in MSA 2015 which was driven by the EU Trafficking Convention and Directive.
The Crown Prosecution Service has long developed policy in relation to victims of human trafficking who commit crime. This might include an adult or a child who has been compelled to commit a criminal offence as a direct consequence of being a victim of slavery or exploitation. The clash between human trafficking and criminality is well known and has been the subject of at least three cases of mine, including an international conspiracy relating to smuggled migrants and an alleged trafficking ring, both tried on the Midland Circuit. I have also been involved in a transnational drug trafficking case where the client was given the death penalty, but we were able to persuade the authorities to grant a last-minute reprieve (currently pending an investigation and prosecution of the alleged traffickers).
In England and Wales, when defending a client accused of an offence (such as drug trafficking) who is also a victim of human trafficking, there is an additional burden on defence counsel to advise on both the offence and the human trafficking referral mechanism. It often requires waiving privilege and making representations that the client should not be prosecuted at all. Prosecutors should have already considered their four stage obligations, but sometimes bad decisions are made, or clients are too frightened of their traffickers to speak out to the police – especially if they have committed a crime and particularly if they have climbed the chain of command in order to survive. The courts have recognised delayed complaints in sexual offending but have been slow to recognise similar drivers on vulnerable defendants.
The reality is that a vulnerable victim accused of a serious crime may only speak for the first time about their experiences when they have counsel who is aware of the issues and able to take meaningful instructions on both aspects. Pre-trial, it may be possible to make representations that proceedings should be discontinued. These should be addressed to the CPS 4 stage test:
1. Is there a reason to believe that the person is a victim of trafficking or slavery?
2. Is there clear evidence of a credible common law defence of duress?
3. Is there clear evidence of a statutory defence under Section 45 of the Modern Slavery Act 2015? The evidential burden is on the defence.
4. Is it in the public interest to prosecute? Even where there is no clear evidence of duress and no clear evidence of a s.45 defence or where s.45 does not apply (because the offence is excluded under Schedule 4) this must be considered. In considering the public interest, prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation; see, for example, R v LM & Ors  EWCA Crim 2327, R v VSJ & Ors  EWCA Crim 36, and R v GS  EWCA Crim 1824
It is important to note that policy has recognised both the direct and indirect nature of exploitation, even though substantive law has been slow to follow. There will need to be credible evidence to give rise to the relevant belief which requires instructions to be taken sensitively. It is important not to exclude such an assessment just because an individual appears to be in control of some aspects of their life and not others.
Child soldiers can become commanders and not all are prosecuted, even in international law (although the case of Dominic Ongwen https://www.icc-cpi.int/uganda/ongwen is challenging in this context). The common law defence of duress can be relevant in some circumstances where there have been threats to life but, unfortunately, unlike other jurisdictions, in England and Wales duress is very tightly defined and the Court of Appeal in R v VSJ & Ors declined (wrongly in my view) to expand duress to all forms of threats of harm.
The defence of marital coercion has now been abolished in England and Wales so, whilst there is an offence of coercive control, there is no corresponding defence. This can put victims of trafficking within relationships at a distinct disadvantage. In addition, whilst section 45 of the MSA 2015 does provide a complete defence for human trafficking victims who commit crime as a direct consequence of their trafficked status, unfortunately, schedule 4 excludes many offences where exploitation might occur. This means that the scope for reduced responsibility or non-liability is highly confined. In my view, the legislative framework in the UK fails to implement commitments to protection of human trafficking victims in this context.
If the client pleads guilty or is found guilty after a trial, issues can then arise on sentence. The Sentencing Council has carried out one small research project on vulnerable women who act as drug mules and recommended reduced sentencing but there is still no really specific mitigating criteria for trafficked victims. Material will need to be placed before the court and effort made, in serious cases, to avoid the tendency to sentence quickly rather than reflect on issues, such as compulsion.
If a section 45 defence has been rejected by a jury, there is a risk that the sentencing judge will reject all issues of trafficking but, even if it is found that the offence was not a direct consequence of human trafficking, there may still be a sufficient nexus to justify significantly reducing any sentence. Human Trafficking as an issue allows for considerations of reduced culpability at every stage of criminal proceedings. It is developing well in the UK and ironically, the current furore over ‘county lines’ could be an opportunity to focus on the defence, for a change.
Felicity Gerry KC acted as consultant on the UNODC Module on the links between cybercrime, human trafficking and smuggling of migrants with the assistance of Alexandra Scott – details here
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