James Tilbury write article on Young Victims of Trafficking: Prosecution or Protection?

Young Victims of Trafficking:
Prosecution or Protection?

Overview:

Within the present criminal justice system there is a growing tension between the public interest in prosecuting alleged offenders and protecting defendants who are themselves victims of trafficking [“VOT’s”]. 
This is particularly acute where a defendant was under 18 at the time of an offence.
The UK media now regularly features the use of youths by sophisticated criminal gangs in “county lines” type of cases. This in turn has resulted in a comparative increase in litigation involving the national referral process [“NRM”]  where a young defendant, who is thought to be a VOT, is referred to the Single Competent Authority  [“SCA”] for a decision  as to their status.  Such is the present volume of individuals in the system that the SCA now has a considerable backlog.

In some instances, there will now also be a further interplay involving a defence raised by s.45 of the Modern Slavery Act 2015, which, in certain tightly prescribed circumstances  , seeks to provide a statutory defence for a VOT to a limited number of offences . The Act makes critical distinctions between those who are under 18 at the time of the offence, and those who are not.

  Set up 1/4/09 to give effect in the UK to art.10 of the Council of Europe Anti-Trafficking Convention
  From 29/4/19 all NRM decisions are made by the SCA based in the Home Office
  The SCA decision will be made to the civil standard
  Cf s.45(4)(b) where a “person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation and per s.45(4)(c) “a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act”
  The defence is not available to many more serious allegations such as sexual offences or serious violence under schedule 4 of the Act

This article aims to assist practitioners by outlining:

a) Some of the practical steps to be considered that may assist a young defendant in the referral process.

b) Some of the principles from recent case law, in particular as regards a continuing prosecution where there has been a positive decision from the SCA that a defendant is a VOT.

National Referral Mechanism:

The NRM is a civil process designed to gather and analyse information about an individual from a number of agencies, such as the police, local authorities, YOTs and other NGO’s.

It operates as a 2 stage process. Within 5 days of any referral by a “first responder” the SCA aims to provide a “reasonable grounds” decision, where it “suspects but cannot prove” a defendant is a victim. In the event of a likely negative decision the SCA may seek further information.

The next stage is a minimum period of 45 days before any “conclusive grounds” decision is made. It is also designated as a period of recovery and reflection for any victim. It will certainly involve the SCA seeking to obtain more information from the various agencies involved. 

It should be noted that the SCA will only make a decision when it is satisfied it is in receipt of sufficient information.

In practice, the defence can expect the process to involve a period far longer than the 45 days.

Practitioners’ steps in the NRM process:

Recognition:

The first logical step is to be vigilant in recognising when a suspect may be a VOT, and this is perhaps easier said than done.
What every criminal practitioner at the coalface will certainly recognise, is that there is often a reluctance from such young individuals to a) see themselves either as a victim in the first place, b) engage with the system in any meaningful manner, and c) run the risk of further trouble if they provide information about such circumstances.

Interviews:

In some cases it may become apparent from an early stage that a young suspect may be a VOT, such as during the PACE interview process.
In order to safeguard against any suggestion that victimisation has been a later invention and to properly inform the SCA decision process, careful consideration should be given to ensuring that an account regarding the circumstances of trafficking is formally before the police, even if only broadly set out in a prepared statement.

It is also anticipated that the police themselves will then, as is their duty, initiate the NRM process and become the “First Responder”.

It is worth noting here that:

i) The NRM process for a youth will not involve any further interview with the SCA and the defendant, and

ii) The process does not require consent for an individual under the age of 18.

Information provided to the NRM by the police and other agencies:

Once a NRM referral is underway, the police have a duty to treat that individual as a potential victim of crime and to log the on-going investigation. That will include a record of all the information provided to the NRM.

During the course of any parallel prosecution of the same defendant, duties as to the disclosure of information that may assist the defence will arise. Practitioners should therefore ensure that early requests are made for such information as the NRM process evolves.

In the case of O & N v Regina [2019] EWCA Crim 752, the Court of Appeal were “particularly struck by the candid assessment” in a police officer’s memorandum as to whether a defendant had been trafficked  and had “no doubt that this would have to have been disclosed in any contested hearing”.

Defence Engagement:

Generally, the defence should try to ensure that there is open co-operation and effective communication with the “First Responder” and the SCA, and that in particular there is a common understanding as to what information has been provided to the SCA and by whom.

In addition, careful consideration should also be given to what additional defence background material and information may be provided to the SCA to assist the conclusive grounds process, such as:

i) YOT reports and key worker contact details.
ii) School reports, documentation and education summary. 
iii) Details as to any foster care or other agencies involved in the defendant’s welfare.
iv) GP and medical records.
v) Immigration records.

Where appropriate, due consideration should also be given to obtaining further expert reports, such as a clinical psychologist to address any pertinent issues as to mental and physical disability and inherent vulnerabilities to exploitation. Such reports may have a relevance not only to the SCA conclusive grounds decision as to being a VOT in the first place, but also to any further decision to continue a prosecution , and the elements of any s.45 Modern Slavery Act  defence.

It should be noted however that the assessment of expert medical evidence when dealing with the correctness of any decision to prosecute has been met with a degree of scepticism as to the credibility of such “untested” accounts provided to medical experts by defendants.

Gross LJ in Regina v EK [2018] EWCA Crim 2961  stated that in terms of value… “ it for a jury or this court to evaluate them…and it is not the function of experts to do so”…

On the other hand, a more recent judgement in R v JXP [2019] EWCA Crim 1280 placed reliance upon medical expert findings, such as a psychiatric report, medical records from immigration detention and from the GP, as providing  “…objective evidence of the applicant’s account of his trafficking experiences…”

Practitioners may feel a sense of caution in providing sensitive and often complex information that will be shared with a number of agencies, including the prosecution authority. On the one hand there is an obvious risk that any inconsistency or lack of internal corroboration within such material may later be deployed by the prosecution authority as a justification for a continuing prosecution.  On the other hand, where there is no material in support, this may give rise to a submission that any positive VOT decision had been untested and uncorroborated.

The Court of Appeal alighted on this as far back as R v L(C) [2103] EWCA Crim991 when it stated that :

“…The Crown is under an obligation to disclose all the material bearing on this issue which is available to it. The defendant is not so obliged, but if any such material exists, it would be remarkably foolish for the investigating authority to be deprived of it…”

As already touched on above, these issues are perhaps compounded by the fact that young individuals, particularly those who are in fact VOT, may have a reluctance to provide all the accurate and significant details in one stage or at all.

The courts should however apply a sense of understanding that non or partial disclosure to authorities is itself often a hallmark of a VOT, as was shown for example in R v JXP , and assess any internal inconsistencies in such accounts provided by a defendant with a keen eye on the realities of similar situations in the criminal courts dealing with VOT and the totality of the evidence.

Delay of criminal proceedings:

There is an obvious importance for all involved in a SCA decision to ensure that the conclusive decision comes before any actual trial of the defendant. As was pointed out by the Court of Appeal in R v EK [2018] the decision of the SCA should inform the trial process rather than the other way round.

This may give rise to a tension where, in the case of young defendants, there is [under BCM] a parallel obligation for a Court to have the criminal matter determined with alacrity.

As was stated in R v L(C) [2013] “…when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings, require to be approached with the greatest sensitivity…” .

Gross LJ in R v S(G) [2018] EWCA Crim 1824  further highlighted that:

“…the UK’s international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT…”

And as was made clear in R v L   “… the ultimate responsibility cannot be abdicated by the Court…”

Practitioners should be aware of the updated CPS internal guidance  that specifies where matters are due for an early guilty plea type hearing, and there are “suspicions” that a defendant is a VOT, there are also obligations on the prosecution to:

i) Make their own enquiries as to when a conclusive grounds decision is to be made.
ii) Request that pleas are not formally entered.
iii) Apply for an adjournment where the defendant’s status as a VOT requires further investigation.

As the NRM process evolves, defence practitioners should always ensure they are provided with copies of:

i) An index to all of the information supplied to the SCA and ii) The SCA Minute to any conclusive grounds decision, which sets out its rationale.

Continuing Prosecution: CPS Guidance

Any assessment of the correctness of a decision to prosecute is likely to have as its backbone the CPS own updated guidance on the matter. This sets out just how the prosecution should approach a decision as to whether to continue to prosecute a VOT .

Once in receipt of a positive decision from the SCA, practitioners may wish to consider making representations to the prosecution with this document as their central plank.

The detailed guidance sets out a 4 stage test. Of note, stages 2-3 are evidential stages, which [at stage 3] specify consideration of any “clear evidence” of s.45 of the Modern Slavery Act.

Where it is determined that there are evidential grounds to prosecute, stage 4 is a public interest test, where 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…”

As regards “compulsion” however, it should also be noted that there is a stark difference in the requisite coercion elements of s.45 of the Modern Slavery Act between adults and defendants under the age of 18, in that there does not need to be the same “compulsion” component attributable to slavery or modern exploitation.

Abuse of process:

Where there has been a positive decision that a defendant is a VOT, and yet the CPS determines that the prosecution should continue, this may give rise to an application to stay the proceedings as an abuse of process.

Principles to be gleaned from recent case law on the matter are now fairly well established. Practitioners should refer to the judgement in R v EK where Gross LJ referred to such principles as now being “well-travelled territory”, being those as he had earlier set out in R v S(G)  , which itself emphasizes parts of the ruling in R v VSJ [2017] EWCA Crim 36 .


A Prosecutorial Discretion:

Firstly, and for the purposes of distilling these principles into this article by way of background, and as the Court were keen to point out in R v S(G), it is important to appreciate that the decision to prosecute is a “…discretion vested in the prosecutor and not the Court…”

And as was made clear in R v VSJ  :

“… the Court’s power to stay is a power to ensure that the State complied with its international obligations and properly applied its mind to the possibility of not imposing penalties on victims. If proper consideration had not been given, then a stay should be granted but where proper consideration had been given, the Court should not substitute its own judgement for that of the prosecutor…”

The CPS guidance itself makes specific reference to those key international obligations as comprising:

i) Article 4 of the European Convention on Human Rights,
ii) Article 26 of the Council of Europe Anti-Trafficking Convention, and
iii) Article 8 of EU Anti-Trafficking Directive 2011/36/EU.

As was highlighted in R v L(C) , what is “…required in the context of a prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences…in this jurisdiction, that protection is provided by the exercise of the “abuse of process” jurisdiction…”

The CPS guidance refers to the prosecution discretion as an exercise in applying scrutiny to the SCA decision and assessing its cogency “… to see to what extent the evidence has been analysed, weighed and tested by the CA and to assess the quality of any expert evidence relied upon…”

No blanket immunity:

Secondly, any positive decision by the SCA that a defendant is a VOT does not confer any “blanket immunity” from any on-going prosecution, even where it arises from their own trafficking .

A Fact Sensitive Exercise:

Thirdly, the assessment of whether the Court should permit any continuing prosecution will be an individual fact sensitive exercise.

There is no “…closed list of factors bearing on a…decision to proceed against a VOT…”

Culpability [1]: the Importance of a Nexus:

Fourthly, that fact sensitive exercise will primarily involve an analysis as to the degree of any nexus. The critical question will be the nature and extent of any interplay between the crime committed and the trafficking.

Case law has repeatedly shown this to be a key aspect in determining any abuse of process.

As stated earlier, when dealing with defendants under the age of 18 it is important perhaps to recognise the absence of any need to prove positive “compulsion” under s.45 of the Modern Slavery Act. Nevertheless there will need to be an overlap in the nature and timing of the [continuing] trafficking and the index offending.

As was stated by Lord Judge CJ in R v L(C) , and then re-emphasized by Gross LJ in R v S(G):

“…the distinct question for decision, once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty, are integral to or consequent on the exploitation of which he was the victim…”


Culpability [2]: Gravity of Offences:

Fifthly, the prosecutorial exercise therefore involves an assessment of culpability and to what extent it can be diminished or extinguished.

In this regard, the critical question is the gravity of the offence[s].  Case law has shown this to have often been a paramount consideration in the minds of the Court of Appeal.

In addition, and as regards culpability generally, issues as to a defendant’s age and medical evidence as to mental and physical disorder may also find some bite here.


Key Abuse Questions: Bottom Line:

Overall, whilst a positive decision from the SCA does not bind prosecutors or the Court, it should nevertheless be respected, “…unless there is a good reason not to follow…”  it.

It is perhaps to be remembered that the SCA is a governmental body set up with particular expertise and knowledge in the field of trafficking. It is also worth reminding ourselves that the CPS is an equal arm of the same State.

The prosecution will therefore need to be in a position to clearly demonstrate to the Court a robust basis for their questioning of any positive NRM finding.

The case of R v VSJ   [itself re-stating a principle from R v L[C]] clearly stated that:

“…The decision of the competent authority as to whether a person had been trafficked…is not binding on the Court but, unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal Courts will abide by the decision…”

It therefore follows that an abuse application will require an analysis as to what degree the prosecution can demonstrate that:

i) There was further significant material that the SCA had not considered or
ii)  There was significant material available to the prosecution that undermined the fact finding exercise of the SCA.

The centrality of these x2 questions is further underscored by their specific reference within the CPS guide.

It will therefore be of critical importance that all parties prior to any abuse determination are:

i) Provided with a full list of what material was considered by the SCA in reaching its decision.
ii) Provided with the Minute to the conclusive grounds decision [which sets out, inter alia, the reasoning behind it].
iii) Provided by the prosecution with a document that sets out the reasoning behind any decision to prosecute and in particular what significant material is said either to undermine the SCA decision and/or had not been considered by them.


Conclusion:

The rub of much of the above is that both the decision processes within the SCA and within the CPS are contingent to a degree upon the “reasonableness” of an exercise of discretion by individual decision makers.

There are also difficult and delicate decisions to be made by defence practitioners, such as:

i) Advice as to disclosure of VOT circumstances in interview, which are likely to involve an admission as to the commission of an offence.
ii) To what degree to obtain and provide further material to the SCA.
iii) To assess a prosecution decision to proceed in the light of a positive SCA decision, and whether it is a matter for an abuse of process submission, or should rather amount to compelling mitigation.

Generally, it is advised that early and open engagement between all parties stands the best chance of ensuring that a correct and “reasoned” outcome is achieved.

 

 


Jim Tilbury

Carmelite Chambers
London
EC4Y 0DR

18/9/19
 

 

 

 

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Date: 30/09/2019