News & Insights
Felicity Gerry QC explores some of the issues that arise when defending trafficked persons who commit crime in the COVID-19 era.
On the 6th May 2020, the UN Information service issued a warning that measures to curb the spread of the COVID-19 are exposing victims of human trafficking to further exploitation and limiting their access to essential services. The warning indicated that “new analysis from the United Nations Office on Drugs and Crime (UNODC) shows how lockdowns, travel restrictions, work limitations and cuts in resources are having a negative and often dangerous impact on the lives of these already vulnerable people – before, during and even after their ordeal”. Director Ghada Waly said:
“With COVID-19 restricting movement, diverting law enforcement resources, and reducing social and public services, human trafficking victims have even less chance of escape and finding help. As we work together to overcome the global pandemic, countries need to keep shelters and hotlines open, safeguard access to justice and prevent more vulnerable people from falling into the hands of organized crime.”
For defence lawyers, it is not just that the legal frameworks are complex, but that we may be the first people to whom the victim, who is accused of a crime, has divulged their status as a trafficked person. The use of online courts risks an additional lack of access to justice for vulnerable people.
• It is relatively well known now that s45 of the Modern Slavery Act 2015 provides a defence for trafficked persons who are compelled to commit crime where that compulsion is attributable to slavery or to relevant exploitation. Unfortunately, protection for trafficked persons is limited because schedule 4 to the Act limits the offences to which it applies. This does not prevent representations being made to the CPS that it is not in the public interest to prosecute an individual, even if the alleged crime is an offence to which s45 is not applicable. This can be particularly useful for those who play minor roles in serious offending, such as accessories. The CPS Guidance on human trafficking, smuggling and slavery is here.
• It is also relatively well known that those wrongly convicted before the Modern Slavery Act came into force can seek to appeal. The Court of Appeal Criminal Division (CACD) in R v VSJ  1 WLR 3153 declined to extend the duress defence; thus the CACD largely deploys policy reasoning (under the guise of abuse of process) to quash convictions where, had trafficking status been known at the time of the original prosecution, the individual would not have been prosecuted.
• The accused trafficked person carries an evidential burden to raise their status, but the burden of proof remains on the prosecution. See MK v R and Gega v R  EWCA Crim 667.
• The very recent decision in R v DS  EWCA Crim 285 makes it plain that a stay of an indictment as an abuse of process would be extremely rare at trial level and gave priority to the statutory framework leaving policy decisions by the CPS.
The problem with the approaches outlined above is that there are trafficked persons who will not be protected because Parliament has limited the obligation to protect victims of human trafficking in organised crime by the nature of the crime, rather than the status of the person as a trafficked person.
In R v D  EWCA Crim 2995, the CACD held inter alia that:
• It is important that wherever possible, those who may be victims of trafficking are identified before any plea is taken at court.
• Should the matter be raised at the first hearing the judge will need to determine, as a matter of judgment on the facts of the individual case, whether a defendant is a potential credible victim of trafficking. If he/she so determines, then the case should be adjourned for a National Referral Mechanism referral to be made. This should take 45 days but in practice may be considerably longer.
• In such cases, the usual stage timetable for case progression under Better Case Management in the Crown Court, and Transforming Summary Justice in the Magistrates’ Court, cannot apply and stage dates will need to be altered to accommodate the referral.
However, published research I undertook with colleagues from Trilateral Research in 2018 found that it becomes increasingly difficult to identify victims of human trafficking when online courts are used. Trafficked persons engage with the justice system in a variety of ways. Some are witnesses to trafficking crimes in a criminal prosecution, others may themselves be on trial for crimes they were compelled to commit as a result of their trafficking situation. Additionally, they can be party to a civil case, e.g., arising out of an employment situation. In each of these cases there is possibility for the victim to be identified, if they are not already, as somebody who has a right to assistance and support. There is an opportunity for the State (through justice systems) to enable sensitive identification and thus fulfil human rights obligations. When cases go online there are serious questions with regard to privacy and data protection and how the implementation of online court processes may act as a barrier to identifying victims of human trafficking. Add to this, that confessions in a referral mechanism are not protected from admissibility in criminal proceedings and the chance of identifying trafficked persons, already under pressure from their traffickers, becomes very remote indeed. Additional research has shown that it is only through safe structures to confess that a trafficked person, accused of committing crime, will be able to achieve non-prosecution for that crime.
Part of the UN warning referred to above came from Ilias Chatzis, the Chief of UNODC’s Human Trafficking Section who said that “traffickers may become more active and prey on people who are even more vulnerable than before because they have lost their source of income due to measures to control the virus.”
There is a risk in times of a pandemic that law enforcement resources are diverted due to emergency policing and of course we know that vulnerable people are more at risk of contracting the virus and have less access to healthcare. Add to this the potential for a lack of access to justice through the drive for online courts and we can start to see how the criminal justice system can fail the victims in the dock who we are under an obligation to protect. Thus, trafficked persons are victimised by their traffickers and doubly victimised by the State.
For more information: Impact of the COVID-19 Pandemic on Trafficking in Persons
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