Factual and Procedural Background
The opinion concerns five cases involving defendants who asserted that they were victims of human trafficking. The cases provided an opportunity to examine the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197), relevant substantive criminal law, and prosecutorial guidelines arising from the convention. The defendants in these cases faced various criminal charges, including controlling prostitution and offences related to false identity documents. The procedural history includes police investigations, Crown Prosecution Service (CPS) decisions, trial proceedings, and appeals focusing on the application of the Convention and related prosecutorial obligations.
Legal Issues Presented
- What are the obligations of the United Kingdom under the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, particularly Articles 10 and 26?
- How should Article 26's "Non-punishment Provision" be applied in criminal prosecutions involving suspected trafficked victims?
- What is the scope and application of common law defences such as duress and necessity in cases involving trafficked victims?
- What is the role and limit of the court's power to stay proceedings on grounds of abuse of process in the context of trafficking-related prosecutions?
- How should prosecutorial discretion be exercised with regard to public interest in prosecuting individuals who may be trafficked victims?
- What are the evidential and procedural requirements for identifying victims of trafficking and ensuring compliance with the Convention?
Arguments of the Parties
Appellant's Arguments
- Some defendants argued that their convictions should be quashed due to breaches of the Convention, particularly Article 10, for failure to refer them to appropriate victim identification agencies such as the United Kingdom Human Trafficking Centre (UKHTC) or the Poppy Project.
- It was contended that prosecuting trafficked victims without proper consideration of Article 26's non-punishment provision was unlawful and justified quashing convictions or staying prosecutions.
- One appellant asserted that the prosecution failed to properly consider the public interest in continuing prosecution once it was accepted that they were trafficked victims coerced into offending conduct.
Respondent's Arguments
- The Crown submitted that prosecuting victims who had transitioned from being trafficked victims to active exploiters of others was justified and reasonable based on the evidence.
- It was argued that breaches of Article 10, while regrettable, did not render prosecutions unlawful or justify quashing convictions absent failure to consider Article 26.
- Regarding other defendants, the Crown disputed the credibility of trafficking claims and submitted that offences were committed outside any nexus of compulsion arising from trafficking, thus not engaging Article 26 protections.
- The Crown acknowledged that where the Article 26 public interest question was not reconsidered after a change in factual basis, the prosecution should have been discontinued or a stay granted.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Rantsev v Cyprus and Russia (Application 25965/04) |
Trafficking may fall within the prohibition on servitude under Article 4 ECHR. |
Used to illustrate the serious nature of trafficking and its relevance to human rights law. |
| R v O [2008] EWCA Crim 2835 |
Importance of Convention obligations and prosecutorial guidance regarding trafficking victims. |
Referenced to highlight past lack of awareness and misapplication of the Convention in prosecutions. |
| R v Z [2005] 2 AC 467 |
Common law defences of duress and necessity, and their limitations. |
Applied to explain the scope of defences available to trafficked victims coerced into offending. |
| R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 |
Legitimate expectation and abuse of process jurisdiction relating to treaty obligations. |
Used to support the availability and limits of staying prosecutions for failure to observe treaty obligations. |
| R v SSHD ex p Ahmed [1998] INLR 570 |
Legitimate expectation arising from treaty obligations. |
Referenced in context of the Adimi case to establish principles of legitimate expectation. |
| R v Asfaw [2008] UKHL 31; [2008] 1 AC 1061 |
Interpretation of statutory defences mirroring treaty obligations and limits on abuse of process stays. |
Clarified that prosecution is not an abuse of process absent improper use of charges and that legitimate expectation does not extend beyond statutory limits. |
| R v Home Secretary ex p Daly [2001] UKHL 26; [2001] 2 AC 532 |
Proportionality test in human rights law. |
Distinguished from the test for abuse of process jurisdiction, but noted that both tests often yield similar results. |
Court's Reasoning and Analysis
The court began by outlining the United Kingdom's obligations under the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, emphasizing Articles 10 and 26. Article 10 imposes a positive duty on states to identify and assist victims, while Article 26 requires that victims not be punished for unlawful acts committed under compulsion arising from trafficking.
The court explained that English law implements Article 26 through existing common law defences of duress and necessity, prosecutorial guidance, and the court’s power to stay proceedings for abuse of process. However, Article 26 does not provide a standalone defence before a jury, nor does it grant blanket immunity to trafficked victims.
The prosecutorial guidance imposes a three-stage test: (1) whether there are reasonable grounds to believe the person has been trafficked; (2) whether there is clear evidence of a credible common law defence; and (3) whether the public interest supports prosecution despite absence of such a defence.
The court emphasized that prosecutorial decisions must conscientiously consider Article 26. Failure to do so may constitute a breach of the Convention and justify a stay of proceedings if the decision to prosecute is one no reasonable prosecutor could make.
In the cases before the court, the three women convicted of controlling prostitution were initially prosecuted on the basis that they had moved from victims to exploiters. When the factual basis changed to accept they acted under coercion as trafficked victims, the Crown failed to reconsider the public interest under Article 26. The court found this failure fatal and held that the convictions should be quashed.
Regarding other defendants, the court examined the credibility of trafficking claims and the nexus of compulsion. It found that where the nexus was absent or the claim was not credible, the Convention did not apply to prevent prosecution or appeal.
The court rejected arguments that breaches of Article 10 alone rendered prosecutions unlawful but acknowledged the importance of referral to victim identification agencies. It noted that police should remind solicitors of these agencies unless unusual circumstances exist.
The court also clarified misconceptions about the scope of Article 26, rejecting overly broad interpretations that trafficked persons should never be prosecuted for crimes committed as a result of trafficking.
Finally, the court reiterated that the power to stay proceedings for abuse of process is limited and serves as a safety net to ensure compliance with the Convention, not to substitute the court’s view for that of the prosecutor on public interest.
Holding and Implications
The court ALLOWED THE APPEALS of the three women convicted of controlling prostitution and QUASHED THEIR CONVICTIONS due to the Crown's failure to reconsider the public interest under Article 26 after accepting their plea basis that they acted under coercion as trafficked victims.
Leave to appeal was refused for two other defendants whose trafficking claims were found not credible or whose offences were committed outside any nexus of compulsion arising from trafficking.
One defendant’s sentence was reduced and deportation recommendation quashed on the basis of mitigation arising from her status as a trafficked victim.
The decision clarifies the proper application of the Convention’s provisions in criminal proceedings, emphasizing the prosecutorial duty to assess public interest in light of trafficking status and coercion. It rejects blanket immunities for trafficked victims and delineates the limited role of courts in reviewing prosecutorial decisions. No new legal precedents were established beyond application and clarification of existing principles.