Court of Appeal Criminal Division allows appeals against conviction of child victims of trafficking

Friday 21 June 2013

The Criminal Division of the Court of Appeal has today allowed appeals against conviction by victims of child trafficking. L, HVN, THN & T v R [2013] EWCA Crim 991

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The judgment goes further to set down important guidelines on the role of criminal courts in identifying victims of trafficking and the approach they should take toward age disputes.

Three of the appeals concerned Vietnamese children found in cannabis farms in the United Kingdom and prosecuted for the production of a controlled drug under the Misuse of Drugs Act 1971 due to their presence there. In one of these cases the child had been prosecuted as an adult, despite being a child.
When giving its judgment, the Court of Appeal held that where a child victim of trafficking was facing criminal proceedings his or her best interests were not only a relevant consideration but were a primary consideration. When doing so it recognised this obligation under international law arose from Article 3 of the United Nations Convention on the Rights of the Child and Article 24 of the Charter of Fundamental Rights of the European Union.

The Court of Appeal also considered the submissions made by the Children's Commissioner in relation to the proper approach to age assessments in the criminal courts. It noted that criminal courts had a statutory duty to make due enquiries about a defendant's age and that this meant much more than a superficial observation of the defendant in court or in the dock. It partly based this observation on the fact that young people from an ethnic group with which the court is unfamiliar may seem older, or indeed younger, than those from ethnic groups with which the court has greater experience.

In situations where there was insufficient evidence before a court to make a proper assessment, the Court of Appeal held that the hearing should be adjourned so that the parties and/or the relevant children's services department could undertake further investigations or obtain expert evidence and noted that the prosecution was under a duty to disclose any evidence in its possession which related to a defendant's age.

The Court of Appeal also accepted that where there are reasons to believe that the defendant is a child, then he should be treated as a child until his or her age had been assessed and that, if at the end of an examination of the available evidence his or her age could still not be determined, a presumption in favour of the defendant being a child should be applied.

The Court of Appeal also provided useful guidance to criminal courts about how the interests of those who are or who may be victims of trafficking and, in particular child victims of human trafficking, should be approached when they have become involved in criminal activities and prosecutions against them have already been commenced by the Crown Prosecution Service.

It stressed that the criminal court should protect the rights of victims of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim's subservient situation and the international obligations to which the United Kingdom is a party, which include the EU Anti-Trafficking Directive.

In addition, the Court of Appeal made it clear that the test was not just whether the decision to prosecute had been reasonable but that whether issues relating to age, trafficking and exploitation lead the court to disagree with the decision to prosecute. It characterised its role as being to stand between the prosecution and the victim of trafficking where the crimes committed had been an aspect of his or her exploitation. In addition, and most significantly, the Court of Appeal also held that a criminal court had to decide whether the offences committed by a child were a manifestation of his or her exploitation as a victim of trafficking and/or whether the crime he or she is alleged to have committed was consequent on and integral to the exploitation of which he or she was a victim. If the court decided that they were, it would have to stay the proceedings, as to permit the prosecution to continue would amount to an abuse of abuse of process.

Henry Blaxland QC and Michelle Brewer represented the appellant THN. Stephen Knafler QC and Shu Shin Luh represented the Equality and Human Rights Commission (intervening). Nadine Finch represented the Children's Commission for England (intervening).

Click here to read the full judgment.

The case has been widely reported, including by the BBC.

 

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