'What role do judges have in the fight against human trafficking?' - Michelle Brewer delivers key note at OSCE International Conference

Friday 22 November 2019

Michelle Brewer of Garden Court delivered the keynote address at the OSCE (Organisation for Security and Co-operation in Europe) international conference on 'The Critical Role of the Judiciary in Combating Trafficking in Human Beings'.

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'What role do Judges have in the fight against Human Trafficking?'

A. Introduction

Ladies and Gentlemen, it is a pleasure and a privilege for me to participate in this International Conference with such an esteemed audience and speakers. 

In my presentation today I shall be drawing on my experience as a practitioner who has litigated on behalf of victims of trafficking for nearly 20 years in both the UK courts and at the European Court of Human Rights.   

From February 2020, I will cease to practice as a barrister and will be appointed as a judge in the UK courts – the theme of this conference has provided me with an opportunity to grapple and consider what role I consider Judges should command in the fight against Human Trafficking. 

B. Human Trafficking

In 2013, the then incumbent Lord Chief Justice, Lord Judge convened a special court in the Criminal Court of Appeal - to consider the role of the non-punishment principle in cases where the Defendant was a victim of trafficking at the time of the criminal offence. His criminal offence was a manifestation of his exploitation (production of cannabis).  I shall discuss that case shortly, but it was the Lord Chief Justice’s opening observations that I wanted to first draw upon – he stated: 

'This vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully, and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated and, in the vast majority of cases they are: but not always.' 

He later observed in the same judgment that:

'It is surely elementary that every court, whether a Crown Court or magistrates court, understands the abhorrence with which trafficking in human beings of any age is regarded both in the United Kingdom and throughout the civilised world.'

C. What role should judges play?

When I came to consider in pragmatic terms what role judges should have in cases where a human trafficking victim is before them – I considered the papers produced by Corinne Dettmeijer-Vermeulen, the former Dutch Rapporteur on Trafficking in Human Beings, who had been appointed in 2006.   

The Dutch Rapporteur had been a judge for most of her career before she was appointed as the National Rapporteur and, in my opinion, her clear and considered analysis specifically addressing the issue of the role judges in the fight against Human Beings should be adopted judges irrespective of jurisdiction. 

Therefore, I will unashamedly frame my presentation around the concept coined by the National Rapporteur of ‘situational awareness’ and that it is this “situational awareness” that is a key quality for all judges dealing with cases of trafficking in human beings.  

What is meant by ‘situational awareness’? 

The former National Rapporteur considered three constituent elements that make up a Judge’s ‘situational awareness’ when hearing cases where trafficking is in issue. 

The first component, she describes as – judicial understanding or awareness of the different modalities of trafficking that are arising around judges whether it be in their own country and beyond their borders. At the heart of this is a judicial understanding that human trafficking is an ever evolving and dynamic process – the nature of trafficking and how or why people are trafficked is not static or fixed. 

The second component of ‘situational awareness’ is a deprecation of judges operating in silos. Judges should interact with their colleagues in other legal fields. It is vital that judges understand that a just treatment of a victim of trafficking requires an approach that extends beyond one’s own area of law – it is an embracing holistic approach. 

The final component of ‘situational awareness’ is that judges with situational awareness take account of their role as being part of the world – part of international law – of regional law – and the influences that these principles, materials and guidance bring to the work they do and the important role in expanding that law with the experiences that they have gained at a national level. 

I would add one further component – and it is this - judges must be alive to the vulnerabilities of the victims of trafficking that come before them. They must first consider the vulnerabilities that pushed and pulled the victims into trafficking in the first place – often cited as the ‘push’ and ‘pull’ factors, and second they must consider the vulnerabilities that flow from the victims experience of trafficking. This understanding must then inform the judge on what measures need to be in place to ensure that the victim can effectively participate in the litigation. There needs to be clear judicial guidelines of special measures that judges can utlilise. This requires a deep judicial understanding of the impact of trafficking victims lived experience on their psychological health and their willingness to exercise agency. 

I propose to take these components in turn and in so doing draw on UK litigation to situate the importance of these components. 

Human Trafficking – the social reality 

Human Trafficking is first and foremost a business that operates on supply and demand. It is a phenomenon that shifts and evolves.  The common feature of trafficking is that the commodity – the product - is a human being.  The purpose of the trafficker or traffickers is to exploit that human being for gain.   

During my time in practice one of the biggest problems in the fight against human trafficking is the continuing failure to identify victims of trafficking even when they are in plain sight. This is often because of a lack of understanding by those coming into contact with the victim – an understanding that their circumstances or their context amount to trafficking. 

I will consider two UK cases to illustrate this issue: 

In the UK, quite a few years ago the Childrens’ Society produced a report, ‘Hidden Children -separated children at risk’. This report concerned foreign children being brought into the UK by someone claiming to be a relative. That child resides in the home of this relative and is not registered with the authorities. They may or may not go to school and are for all intents and purposes are used as a domestic servant. These children are sometimes used as a means to claim social security benefits. Within civil society anti trafficking organisations this type of child exploitation was known about in the UK - certainly by the early 2000s. 

In 2014 an appeal came before the Supreme Court: Hounga v Allen. This appeal concerned a young Nigerian woman who had been brought to the UK when she was 14 years old. She had already been working for the family in Nigeria for several years. She had been brought over by Ms Allen and false documents had been used to secure her entry to the UK. Ms Hounga lived with Ms Allen for 18 months, she looked after the children, cleaned the house and cooked for the family. During this time she was subjected to serious physical abuse and was not paid. She was told that if she left the family home she would be arrested and put in prison because she was illegally present in the UK. In July 2008, her employer forcibly evicted her from the house. 

Ms Hounga was found by social services and taken into care. 

She subsequently brought an employment claim against her employer for unpaid wages and race discrimination. Her legal claim failed at first instance and onward appeal to the Court of Appeal. Her claim failed in the Court of Appeal because the Court held Ms Hounga had entered into an illegal contract of employment and she was aware during the course of her employment that she was resident in the UK unlawfully and was not entitled to work. The Courts held that to ensure the integrity of the courts, public policy considerations demanded that the Court could not uphold her claim from employer and thus enabling her to benefit from her own wrongdoing – her own illegality. 

In the Court of Appeal and below – it was not explored either by the Courts or the parties whether in fact Ms Hounga was a child victim of human trafficking. 

In the Supreme Court, we, instructed by Anti-Slavery International, made an application to the Supreme Court to intervene in the proceedings. We submitted that the Supreme Court should be addressed on whether Ms Hounga, was in fact a victim of child trafficking for domestic servitude.   

The Supreme Court granted the application to intervene and went on to allow the appeal of Ms Hounga – concluding that she was a child victim of human trafficking with reference to both the Palermo Protocol and ILO indicators of forced labour. Lord Wilson stated 

'The decision of the Court of Appeal to uphold Mrs Allen's defence of illegality to her complaint runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Hounga's appeal should be allowed.'

This case was a striking example of where the social reality and context of Miss Hounga’s lived experience was not contemplated or understood by the lower courts. 

Holistic approach – drawing on international law and guidance 

The Hounga case is also a useful illustration of the second and third components of ‘situational awareness’– which urges judges to have a dialogue and shared learning beyond their own legal fields – and to look outward at the corpus of international law and materials to better understand trafficking.

When we came to run the legal arguments in Hounga in the Supreme Court we were able to draw upon the Criminal Court of Appeal case L v Ors – the case I referred to earlier. 

We did this in two respects: 

First, the Lord Chief Justice in L v Ors was concerned with whether it was in the public interest to prosecute a Vietnamese young person for cannabis cultivation. A young person who had by the time of his criminal appeal been identified as a child victim of trafficking. 

The Lord Chief Justice stated: 

'What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that 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. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.'

In Hounga we relied upon that passage in L v Ors when framing the submission that Ms Hounga should not be considered culpable for her illegal conduct – the Court was required to look at that conduct in the context of her trafficking experience and her particular vulnerabilities as a girl child from a impoverished background in Nigeria. 

The second respect was this, because in both Hounga and L v Ors we were dealing with children (by that I mean young people under 18 years of age)– we drew the Courts attention to  the ILO Convention 182:  Worst Forms of Child Labour Convention and the UN Convention on the Rights of the Child. We stressed both in our submissions to the Court  in L v Ors and in Hounga that it is plain that to use children either for illegal purposes or to place children in work that by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children –this is exploitation within the definition of trafficking.  

The situational awareness was absolutely crucial in both cases to their success. Certainly in the criminal case it represented a significant shift by the Criminal Court of Appeal from the position taken in early judgments concerning young Vietnamese people found in cannabis farms.  I should say the appellants in Lv Ors had their convictions quashed. 

Effective participation in legal proceedings 

Finally, and as crucial in the fight against human trafficking – is the Judge taking a pro-active role in ensuring the effective participation of the victim in proceedings? This can only be done by judges understanding the individual challenges that a victim may have to have their voice heard.   

It requires judicial understanding of the intersecting factors which may impede a victim to participate and provide an account of their trafficking in court proceedings. 

A European Commission Study and the IOM have – introduced 5 ‘clusters’ to better understand the factors which make children vulnerable to human trafficking. I think these clusters are applicable to adults and are a useful tool in understanding the intersecting vulnerability of a victim who is before the court. 

These are 

  1. Individual vulnerability

  2. Familial vulnerability

  3. Socio-economic vulnerability

  4. Structural vulnerability

  5. Situational vulnerability

To illustrate how these vulnerabilities can be managed in a court setting: I was involved in a case where the UK immigration authorities had sought to deport a Vietnamese young person because of his conviction for cannabis cultivation. This young person had been identified as a victim of trafficking, he had a neurodevelopment disorder (he was autistic), he had Post Traumatic Stress Disorder and severe depression.  He had no surviving family members, as an asylum seeker he had a reduced support network.  His childhood in Vietnam was one of privation and he had received little formal education. Further, the organised criminal network responsible for his trafficking was sophisticated and had a base within the UK. 

The Judge considered the impact of these intersecting factors –in particular that his exploitation from an early age created an overly compliant and deferential approach to authority figures, that the prolonged period of exploitation resulted in complex long term mental health problems and that because of his neurological disorder – his ability to understand and effectively participate in proceedings were compromised. 

With that in mind the judge provided a series of special measures directions which enabled my client to effectively participate in the hearing – these included: 

(i) Identity protected – closed hearing and anonymity;
(ii) My opponent had to reduce all his questions for my client to writing and these were to be provided to my client in advance of the hearing;
(iii) My client’s psychotherapist was able to sit next to him during the hearing and monitor his health;
(iv) My client was given a lot breaks and reassurance from the judge that if he needed a break or couldn’t follow something he could say;
(v) The voices of the parties and the judge remained measured and calm throughout;
(vi) The questions posed had to be simple single issue questions.

These special measures are crucial to my client having a fair hearing. These types of special measures for victims of trafficking are fundamental to ensuring that victims have effective access to justice and are empowered to participate in the litigation process. It was only through the Judge’s experience and understanding of vulnerable witnesses and measures that are needed that enabled my client to participate effectively. 

In conclusion 

In the UK, over two weeks ago, the stark and harsh reality of human trafficking in the UK was brought home by the deaths of 39 Vietnamese nationals, whose bodies were found in a refrigerated lorry. On Friday, the identities of the victims were disclosed – among the dead were 10 teenagers. It is plain to those who work in this field that these were highly likely to have victims of trafficking destined for exploitation in the UK. We need to hold these victims and others like them at the centre of what we do whether that is as practitioners or has judges – otherwise justice will be denied to those victims. 

Thank you.

Michelle Brewer is a member of the Garden Court Chambers Public Law Team.

The conference took place from 13 - 14 November 2019. The full programme from the conference is available to view here: 'The Critical Role of the Judiciary in Combating Trafficking in Human Beings'

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