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Jim Tilbury and Alexandra Scott consider the implications of the recent ECHR judgment in VCL and AN v UK in the context of the Modern Slavery Act 2015, and the recent domestic caselaw.
On 16th February 2021, the European Court of Human Rights (‘ECHR’) handed down its judgment in the case of V.C.L. and A.N. v the United Kingdom (‘the UK’), finding that the latter had failed to fulfil its duties under Articles 4 and 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).
The primary utility of this judgment for practitioners will arise where there has been a positive conclusive grounds decision made by the Single Competent Authority (‘SCA’) that a defendant is a victim of trafficking and the prosecution are considering whether or not to embark upon or continue a prosecution.
The decision itself concerned the prosecution of victims of trafficking, and is of particular ECHR significance because it was “the first occasion on which it has been called upon to consider if and when such a prosecution may raise an issue under Article 4 of the Convention” (para. 157).
The ebb and flow of principles from recent domestic caselaw has arguably seen a rise in the continuation of prosecutions irrespective of positive National Referral Mechanism (‘NRM’) decisions by the SCA, where the prosecution have effectively said that a) they disagree with the decision, and b) it is therefore “a matter for the jury” to determine at trial.
And yes, it is now clearly settled with recent domestic caselaw, that the question as to whether a defendant has, or has not, been a victim of trafficking is indeed an issue for the jury at trial. However, that does not mean that the CPS can sidestep any positive SCA decision without a properly focused and reasoned basis for such rejection.
This ECHR decision helpfully injects a requirement that the CPS undertake a full and careful analysis. It should ensure that a more detailed and fact specific approach is taken by the prosecution in any rejection of the findings of the SCA, and that in turn should weed out any poor or ill-thought-through decision making.
Factual and legal background
The case concerned two separate criminal prosecutions that took place in the UK in 2009, both relating to youths working on cannabis farms, and both of which proceeded in spite of the fact that the SCA had concluded that both individuals had been the victims of child trafficking.
Both applicants went through various appeal processes. The first appeal of both applicants was heard together in 2012: the Court of Appeal upheld the decision to prosecute both, and refused leave to appeal to the Supreme Court.
By way of further history in relation to the first applicant’s case, this was referred back to the Court of Appeal by the Criminal Cases Review Commission (‘CCRC’) in 2016, being heard together with five other appeals.
On 9th February 2017 that further appeal was rejected, the Court of Appeal asserting that in practice the law operating even before the MSA 2015 was consistent with the UK’s international obligations, and that the relevant issue was whether there was a sufficient nexus between the trafficking and the offence, not – as with adults – whether there it could be shown that there was a compulsion to commit the offence. The Court of Appeal found that in the First Appellant’s case the decision to prosecute was ‘amply justified’, and on 21st March 2017 refused the application for a certificate that points of law of general public interest raised ought to be considered by the Supreme Court.
ECHR judgment: operational measures
In this judgment, the ECHR reviewed all the relevant domestic legislation – including the MSA 2015 – practice (such as ACPO guidance, CPS Guidance, and the National Referral Mechanism), and caselaw, and in turn the relevant international law including the Palermo Protocol, and the Anti-Trafficking Convention. Some time was also devoted to consideration of the relevant EU law, in particular Articles 2, 8 and 9 of the Anti-Trafficking Directive (Directive 2011/36).
The ECHR found that while it “is clear that no general prohibition on the prosecution of victims of trafficking can be construed from the Anti-Trafficking Convention or any other international instrument” (para. 158) “the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked” (para. 159).
Timely assessment as a priority: protection of potential victims of trafficking
Much of the judgment reflects common sense, notably the emphasis on the need to have a full and proper assessment as a first step: “given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, any decision on whether or not to prosecute a potential victim of trafficking should – insofar as is possible – only be taken once a trafficking assessment has been made by a qualified person. This is particularly important where children are concerned” (para. 161).
The judgment highlights the duty of all parties to proceedings – the Crown, Defence and Judge – to be alive to the possibility of trafficking. A failure to conduct a timely assessment of whether a defendant has in fact been trafficked can amount to a breach of the authorities’ positive obligations under Article 4, and by extension Article 6, as a failure to carry out such an assessment could prevent the defendant from securing evidence crucial to a fundamental aspect of his or her defence (see para. 174, 183 and 200 of the judgment).
This therefore bolsters the principles from the domestic case of R v EK  EWCA Crim 2961 in seeking to ensure that the assessment comes first, informing any subsequent decision to prosecute, and if applicable informing the trial process, and not the other way around.
Duty to provide clear, focused and adequate reasons
Further, and of particular significance here: “while the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it” (para. 162).
In relation to both Applicants, the Court found that the reasons given for pursuing prosecution were insufficient, failing to explain why the “core” elements of the decision of the SCA had been rejected. The reasoning provided had not focused on the key constituent parts of “trafficking” as defined by the Palermo Protocol and the Anti-Trafficking Convention. Instead it had sought to pick out “peripheral” matters such evidential inconsistences in the defendants’ accounts, in circumstances where such matters had already been considered by the SCA.
A CPS decision should fully and clearly address the actual key components of any SCA opinion that the defendant is a victim of trafficking. This will mean a focused and reasoned rejection of the actual SCA findings for “action” (such as recruitment, transportation, and harbouring), “purpose” (such as forced gang criminality or other exploitation) and – if the defendant is an adult – “means” (such as threats, deception). Merely pointing out, for example, the seriousness of the offences, or a perceived lack of clear evidence of trafficking, without such detailed reasoning is inadequate. However, where for example there has been new phone evidence that has come to light that does address the component parts, this might justify such a rejection.
The ECHR judgement also points out that even where the CPS agrees that an individual is a victim of trafficking, it would still be open to prosecute where it was carefully reasoned that there was no nexus between the trafficking and the index allegation.
This ECHR judgement will assist defence practitioners with the following: Ensuring that there is a fully reasoned Minute from the SCA, including careful detail of what material it has considered, particularly material that is arguably “adverse”;  Requesting the CPS to provide in clear and detailed terms the basis for any rejection of the specific elements of that SCA decision, namely “action”, “purpose” and “means” (if not a minor);  This is particularly so where the SCA has already considered such matters (e.g. inconsistencies in accounts provided or other evidence of circumstance).
It is hoped that the ECHR’s emphasis on the need for the CPS to articulate clear and sharply focused reasons for any decision to prosecute in spite of a positive finding by the SCA might at least stem what many practitioners report, of recent trend to reject the Conclusive grounds findings without careful analysis, and simply throw the matter to the jury to “pick the bones out of that”.
James Tilbury is a highly regarded leading junior, regularly instructed in complex cases of serious commercial fraud and organised crime. Recent instructions have included payroll fraud, conspiracy to kidnap, perverting the course of justice, gang-related violence and large scale drugs conspiracies.
Alexandra Scott’s practice encompasses organised crime, and she has particular expertise representing vulnerable defendants facing serious allegations.
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