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THE NON-CRIMINALISATION OF VICTIMS OF TRAFFICKING

THE NON-CRIMINALISATION OF VICTIMS OF TRAFFICKING. PAROSHA CHANDRAN 1 Pump Court Chambers. First annual report of the Inter-Departmental Ministerial Group on Human Trafficking, October 2012 :.

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THE NON-CRIMINALISATION OF VICTIMS OF TRAFFICKING

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  1. THE NON-CRIMINALISATION OF VICTIMS OF TRAFFICKING PAROSHA CHANDRAN 1 Pump Court Chambers

  2. First annual report of the Inter-Departmental Ministerial Group onHuman Trafficking, October 2012: • “In 2011, 946 potential victims of human trafficking were referred to the National Referral Mechanism (NRM). Of these, 634 were females and 312 were males, 712 were adults and 234 were children. The majority of potential child victims were reported to be in the 16–17 year old age category. The most prevalent source countries for potential victims who were referred into the NRM were Nigeria, China, Vietnam, Romania and Slovakia. The most prevalent exploitation type recorded through the NRM, for adults, was sexual exploitation however it is recognised that the incidence of labour exploitation and criminal exploitation is increasing. The most prevalent type of exploitation reported for children was labour exploitation. The recently published UK Human Trafficking Centre (UKHTC) Baseline Assessment suggests that there could be over 2,000 potential victims of human trafficking in the UK, based on information collected from a variety of other sources… • …Human trafficking is a complex and hidden crime, and therefore the true scale of it, both within the UK and globally is difficult to determine. There are no clear estimates on how many potential victims there could be throughout the world. The latest ILO global estimate, published in June 2012, suggests that there are nearly 21 million victims of forced labour, including forced sexual exploitation, with an estimated 5.5 million trafficked children.”

  3. (2) Relevance of Identification as Victims: OSCE Special Representative’s Policy and legislative Recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, April 2013 • “[1] Trafficking in human beings is a massive phenomenon of modern-day slavery, which sees • millions of individuals deprived of their liberty and freedom of choice, exploited with coercive and • abusive means for a variety of purposes ranging from sexual and labour exploitation, to forced • criminality and to the removal of organs or any other illicit lucrative form of exploitation. Very • few receive assistance and protection as victims of a serious crime; more often they are arrested, • detained and charged with immigration offences, for soliciting prostitution or engaging in illegal • work, making false statements or they are fined for violations of administrative laws and • regulations. Furthermore, the increasing prevalence globally of human trafficking for enforced • criminality also exposes victims of trafficking to committing a multitude of offences such as, but • not limited to, theft, pick-pocketing, drug trafficking, cannabis cultivation and fraud. It is often a • deliberate strategy of the traffickers to expose victims to the risk of criminalization and to • manipulate and exploit them for criminal activities. It is therefore not uncommon that victims of • trafficking commit criminal offences or other violations of the law directly connected with, or • arising out of, their trafficking situation. In these situations they often come to the attention of the • authorities primarily as offenders and they may not be easily recognized as actual victims of a • serious crime. Therefore, States should be fully aware of these developments in order to enable • accurate victim identification and effective investigation of the trafficking crime, as well as to • ensure effective protection of victims’ rights, including non-punishment of victims for offences • caused or directly linked with their being trafficked.”

  4. Definition of Human Trafficking: EU Directive 2011/36/EU, Article 2[Transposition date 5 April 2013] • Article 2 of the EU Directive 2011/36/EU (‘the Trafficking Directive’) provides: • “Article 2 • Offences concerning trafficking in human beings • 1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: • The [act of] recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. • 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. • 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. • 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended oractual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. • 5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used. • 6. For the purpose of this Directive, ‘child’ shall mean any person below 18 years of age.” [Emphasis underlined/in bold]

  5. Extracts from the “Human Trafficking Handbook: Recognising Trafficking and Modern-day slavery in the UK”, Chandran, P., ed., (LexisNexis 2011), Chapter 2 • “…the Directive extends the definition of ‘exploitation’ to expressly include ‘begging…or the exploitation of criminal activities’. • According to the Recital to the EU Trafficking Directive “this broader concept of exploitation’ is to tackle recent developments in the phenomenon of human trafficking”. The Recital at para 11 advises that ‘forced begging’ should be understood as a form of forced labour or services as defined in the ILO Convention no 29 of 1930 and that ‘the exploitation of criminal activities’ should be understood as being the exploitation of a person to commit inter alia pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain for the trafficker.”

  6. Understanding the irrelevance of consent • Extracts from the Human Trafficking Handbook (LexisNexis, 2011): • “Consent: where all the three core elements are present there has been trafficking in persons (adults) and if any of the above means in core element (2) have been used by the trafficker to obtain the adult victims’ consent to their trafficking, that consent by the victim is thereby rendered irrelevant i.e. the victim is still a victim if they consented in any of those circumstances. The process which leads to the irrelevance of the consent of a victim to their trafficking has been well described by the UNODC in the following way: • ‘When looking at the definition included in the [Palermo Protocol and the Trafficking Convention], the fact that the victim may have consented in any way to the process of human trafficking is irrelevant if any of the means listed above are used. A trafficked person cannot “consent” to being trafficked if the consent occurs as a result of threats, force, abduction, fraud, etc. As such, a human trafficker’s contention the trafficked person agreed to the conditions is irrelevant. If any of the means are present the victim’s consent is no defen[c]e for the accused. For instance, if a person agreed to migrate and engage in sex work but is held by force and coerced to perform sex work for long hours and not paid as promised, that person has been trafficked. The fact the person agreed to go but is then held by force and coerced nullifies the presence of consent. The person has been, in fact, trafficked.’ See: UNODC A Comparative Analysis of Human Trafficking Legislation and Case Law: Suggestions for Best Practices in Creating Laws against Human Trafficking 2009, at p 5. • Children’s cases: where core elements (1) and (3) are present, there has been trafficking in persons (children). There is no legal requirement to establish that any of the means described in core element (2) were used in order for the act of human trafficking of a child to have taken place. Hence, in law a child cannot consent to their trafficking or to their exploitation.” • EU Directive 2011/36/EU reiterates that: “when a child is concerned, no possible consent should ever be considered valid.”

  7. (3) Non Criminalisation Legal Clauses:Trafficking Convention • Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 ((‘the Trafficking Convention’) provides: • “Article 26 – Non-punishment provision • Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”

  8. The Trafficking Directive,transposed into UK law on 5 April 2013 • The EU Directive 2011/36/EU (‘the Trafficking Directive’) provides: • “Article 8 Non-prosecution or non-application of penalties to the victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.” [Emphasis underlined]

  9. Meaning of “compelled” • OSCE Special Representative’s Policy and legislative Recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking: • Adult Cases: “[12] The SR takes the view that the non-punishment provision should be interpreted in light of the definition of trafficking in human beings, especially with regard to compulsion. A comprehensive understanding of compulsion includes all the means of trafficking: threat/use of force, other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability. Being “compelled” to commit a crime thus includes the full array of factual circumstances in which victims of trafficking lose the possibility to act with free will; not only under the threat of physical violence or emotional abuse, but also in the devastatingly prevalent scenarios wherein traffickers exploit victims by abuse of a position of vulnerability.” See also UNODC Issue Paper (104 pages) and Guidance Note (4 pages) on: “Abuse of a position of vulnerability and other “means” within the definition of trafficking in persons “ UNODC, OCTOBER 2012

  10. Meaning of ‘compelled’ cont… • Children’s cases: • “[42] The Special Representative takes the view that in cases involving children, the need for a broad application of compulsion needs to be understood in light of the child’s vulnerability on account of their age alone, and of the irrelevance of consent in the legal definition of child trafficking. More specifically, where there is evidence of abuse and/or exploitation and/or trafficking of a child, from a legal perspective it should be understood that in such circumstances a child has no autonomy, is not free to make clear or informed choices such as regarding opportunities for escape and may have access to very limited, if any, alternative options. Thus, where a child is exploited and/or trafficked, and is used by a trafficker for an illegal purpose, or the child commits a criminal act related to their trafficked status, the application of the non-punishment provision is crucial, not only from a child safeguarding perspective but also to prevent the risk of secondary traumatization to the child at the hands of the State.”

  11. Victim Identification in the UK • As part of its obligations under the Council of Europe Convention on Action against Trafficking in Human Beings a “National Referral Mechanism” (NRM) was implemented from 1 April 2009 to act as the UK’s formal trafficking identification scheme. To be referred into the NRM, potential victims of trafficking must first be referred to one of the UK’s two competent authorities (CA); these are the United Kingdom Border Agency (UKBA) and the UK Human Trafficking Centre (UKHTC). This initial referral will generally be handled by an authorised agency such as a police force, the UKBA, social services or certain NGOs. The referring authority is known as the ‘first responder’. A number of organisations are ‘first responders’ under the NRM . • Referrals are made by the first responder submitting a completed NRM Referral Form to the appropriate CA: there are separate forms for adults and for children, each of which includes a check list of human trafficking indicators. Anyone whom the CA finds has “reasonable grounds” to believe has been trafficked will be entitled to a 45 day reflection and recovery period, during which they can access services such as provided by children’s services, the Salvation Army and Poppy Project (for women) and Migrant Help (for men). A ‘conclusive decision’ may be later reached by one of the CAs which, if a positive decision, is a formal recognition of an individual’s trafficked status.

  12. The Need for Procedural Care & Collaboration • OSCE Special Representative’s Policy and Legislative Recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, April 2013 “[66] Available practice concerning the implementation of the non-punishment principle reveals the challenges in ensuring its effective and consistent application in cases of trafficking for forced criminality, and in particular in drug trafficking cases. Identification of victims of trafficking for forced criminality (i.e., people exploited for committing thefts or drugs-related offences) is often more challenging than in cases in which victims are charged with possession and/or use of false documents. The reasons for this include the fact that often police and prosecutors dealing with theft and drug crimes are not the same as those investigating trafficking cases, and are not familiar with the specific features of trafficking and the frequent use of subtle means of coercion to exert control over victims, (e.g., by use of emotional coercion, or by means of abuse of a position of vulnerability). Moreover, the investigation of such cases often demands the collection of evidence through phone tapping and surveillance to prove that the victims were compelled into the commission of crimes. Therefore, such cases require good collaboration and communication between the various prosecutorial and police services, as well as with NGOs, so that the specific features of trafficking are taken into account and the vulnerability of victims is understood. Since children are often exploited for forced criminality, these cases demand also careful and immediate consideration of their age, status, vulnerability and rights from the outset of any proceedings.”

  13. Conclusion • OSCE Special Representative’s Policy and legislative Recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, April 2013 • “[81] Victims of trafficking are victims of serious crimes and human rights violations. Under • international law, States are obliged to ensure the protection of the rights of victims, including the • right to be accurately identified as trafficked adults or children, and it is this identification that is the gateway to their protection. Not only is non-punishment a principle that respects and protects a • victim’s rights, including the right to be free from detention and unfair proceedings, to be protected • against re-victimization and re-traumatization and to be offered safety and assistance in recovery, • respect for this legal principle also helps to fulfill the State’s obligations towards trafficked persons • in line with the European Court of Human Right’s finding in the Rantsev case. In that judgment the • Court held that human trafficking falls within the protective scope of the non-derogable rights of • Article 4 of the European Convention of Human Rights and that a positive obligation on States to • investigate human trafficking arises where circumstances give rise to, or ought to give rise to, a • credible suspicion that the person had been trafficked. In such cases, where no investigation of the • trafficker takes place but the criminalization of the victim proceeds, this will give rise to an • extremely serious violation of that person’s human rights and also the State’s obligations under • human rights and EU law.”

  14. Case Law List • Rantsev v. Cyprus and Russia - 25965/04 [2010] ECHR 22 (7 January 2010) • OOO & Ors v The Commissioner of Police for the Metropolis [2011] EWHC 1246 (QB) (20 May 2011) • R v O [2008] EWCA Crim 2835 (successful appeal against conviction: Nigerian girl using false identity document to flee abroad from her trafficker in the UK :); • R v LM, MB, DG, Betti Tabot and Yutunde Tijani [2010] EWCA Crim 2327 (LM, MB and DG succeeded in their appeals against conviction; Tabot was unsuccessful in her appeals; Tijani succeeded in her appeal against sentence); • R v O [2011] EWCA Crim 2226 (successful appeal against conviction: similar facts to the 2008 R v O case but post-implementation of the NRM); • R v N, R v Le, [2012] EWCA Crim 189 (two Vietnamese minors convicted of cannabis offences following guilty pleas; subsequent NRM decisions accepted that each individual had trafficked status at the time the offences were committed; unsuccessful appeals brought against conviction, appeals against sentences allowed. These cases are now before the ECtHR) • R v LZ [2012] EWCA Crim 1867 (successful appeal against conviction: use of a false passport to enter the UK and obtain employment whilst under her trafficker’s control). • Sentence: R v Gambo [2011] EWCA Crim 491, a notional sentence of 15 months was reduced by a third to 10 months to reflect the mitigation provided by the background of the Appellant’s trafficked status • R v HTB [2012] EWCA Crim 211, 15-16 year old Vietnamese trafficked girl convicted of cannabis offences following guilty plea. Successful appeal against sentence; no appeal against conviction was brought. • Pending: • Judgment in the 4 ‘Special Trafficking Court’ cases heard in the Court of Appeal (Criminal Division) before the Lord Chief Justice of England and Wales, Lord Justice Moses and the Honourable Mrs Justice Thirlwall on 21 and 22 May 2013 (Cases known as R v L and others, 2013) • N v UK, application now pending before the ECtHR.

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