L, HVN, THN and T v. R
Court of Appeal (Criminal Division)
21 June 2013
Article 3: Best interests of the child
Other International Provisions:
Council of Europe Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention)
EU Directive 2011/36/EU on preventing and combating trafficking on human beings and protecting its victims (EU Directive)
European Convention on Human Rights
Charter of Fundamental Rights of the European Union
The Anti-Trafficking Convention and EU Directive protect victims of trafficking from prosecution or punishment for their involvement in criminal activities they have been compelled to commit as a direct consequence of being trafficked.
This case was a criminal appeal against the convictions of four people, including three children (HVN, THN and T), who were trafficked by criminals and forced to commit crimes. HVN, THN and T each separately came to the UK from Vietnam, and were forced to work in cannabis factories by their traffickers. They were each arrested at age 16, prosecuted and convicted of the offence of producing cannabis. None of them were treated as child victims of trafficking until after their prosecution.
Issue and resolution:
Prosecution of child victims of trafficking. The judgment allowed the appeals and quashed the convictions of all four victims.
Where the defendant may be a child victim of trafficking, the defendant’s age must first be determined. Where their age is uncertain and there are reasons to believe that they are a child, then they should be treated as a child and accorded special protection measures. Next, the evidence which suggests that they have been trafficked must be assessed. If they are found to be a child victim of trafficking, the extent to which the crime alleged against them was consequent on and integral to their exploitation as a victim must then be considered. Where a child victim is being prosecuted, the best interests of the child are a primary consideration.
Culpability may be significantly diminished or in some cases extinguished not merely because of age, which is always a relevant factor, but if the victim was compelled to commit the crime. A level of protection from prosecution or punishment is provided to such victims through the “abuse of process” jurisdiction in the UK. Where an alleged victim claims an abuse of process, the court will decide on the basis of the material brought in support of and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stopped if the court disagrees with the decision to prosecute.
The Court held that on the basis of the evidence now available that each of the appellants were in fact victims of trafficking who were compelled to commit crimes, if prosecution had proceeded, an abuse of process argument would have been likely to succeed and the cases would have been stopped. Accordingly, the Court allowed the appeals and quashed the appellants’ convictions.
Excerpts citing CRC and other relevant human rights instruments:
5. Recital 8 of the EU Directive [11/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims] underlines: “Children are more vulnerable than adults and therefore at greater risk of becoming victims of trafficking in human beings. In the application of this Directive, the child’s best interest must be of primary consideration, in accordance with Judgment Approved by the court for handing down. L; HVN; THN; T -v- R the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child”.
6. Recital 14 provides: “Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities ... that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. The safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.”
7. Article 8 makes provision for the non-prosecution or the non-application of penalties to the victim so that: “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 human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to (trafficking)”.
8. This provision echoes Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (the Anti-Trafficking Convention) which requires the United Kingdom: “In accordance with the basic principles of its legal system, [to] provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so”.
11. The abuse to which victims of trafficking are exposed takes many different forms. At some levels it may amount to “slavery”, or not far distant from “slavery”, “servitude”, or “forced or compulsory labour”. Activities of this kind are prohibited by Article 4 of the European Convention of Human Rights...”
24. The Children’s Commissioner invites us to consider the impact of Article 10(3) of the Anti-Trafficking Convention which provides: “When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall presume to be a child and shall be accorded special protection measures pending verification of his/her age”.
The Office of the Children’s Commissioner intervened in these cases “to ensure courts put the child’s best interests first when considering a prosecution of children trafficked to the UK in order to engage in crime that enriches criminal gangs.”
According to Anti-Slavery International, these are the first cases in the EU where the application of Article 8 of the EU Trafficking Directive has been considered. This judgment is “a milestone in making sure that victims of trafficking are protected against criminalisation”.
ECPAT UK stated that “[t]he Court has made it clear that these prosecutions should never have taken place and the four highly vulnerable victims should not have been treated as criminals and unfairly punished… Today’s judgment reinforced the Government’s responsibility to identify, protect and safeguard trafficked children, such as those seen in these cases – children who have been ruthlessly exploited for the financial gain of others and need our support, not our condemnation.”
CRIN believes this decision is consistent with the CRC. The Court correctly cited Article 3, which provides that the best interests of the child shall be a primary consideration in all actions concerning them. Moreover, Article 12 protects the child’s right to express their views freely in all matters affecting them; in particular, they shall be provided the opportunity to be heard in any judicial proceedings affecting them. Article 39 requires the State to take all appropriate measures to promote recovery and social reintegration of a child victim of exploitation in an environment which fosters the health, self-respect and dignity of the child. Article 8 of the Second Optional Protocol to the CRC, which the UK has also ratified, relevantly requires that the State protect the rights and interests of child victims who have been sold into forced labour, in particular by recognising their vulnerability and special needs, providing appropriate support services, and ensuring that the best interest of the child shall be a primary consideration in their treatment by the criminal justice system.
 EWCA Crim 991
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.