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The European Court of Human Rights has ruled that the UK violated its international obligations to protect the victims of slavery and forced labour.
In February, the European Court of Human Rights (ECHR) found that the UK had violated articles of the European Convention on Human Rights. The case of 'A.N and V.C.L versus the UK’ has been hailed as a ‘landmark decision in the fight against trafficking in human beings’. The ruling could have far-reaching consequences for how law enforcement, the Crown Prosecution Service (CPS) and the Home Office treat victims of trafficking.
This is of critical importance given the scale of the problem in the UK and globally. There are an estimated 21 million people worldwide in forced labour, including forced sexual exploitation, and over 25% of these are children. Exploited men, women and children from over 90 countries have been identified in the UK alone. This illustrates the transnational scale of the problem.
Background and Findings
The case that reached the ECHR involved two Vietnamese minors discovered by the police to be working in a cannabis factory in the UK, a common story for trafficked children, especially from Vietnam. The minors, on the advice of their legal representatives, pleaded guilty to producing controlled drugs and received custodial sentences in youth offenders’ institutions. Both sought leave to appeal against their conviction on the grounds of the non-punishment provision contained within Article 26 of the ‘Council of Europe Convention on Action against Trafficking in Human Beings’, which allows the option of not imposing penalties on victims for their involvement in unlawful activities, where they have been compelled to partake in these activities. In response, UK authorities claimed that, notwithstanding the fact that the minors were identified as victims of trafficking by what the Convention deems a ‘competent authority’ (in this case, the UK Border Agency), the CPS was not bound by such a determination and that its decision to prosecute did not therefore represent an abuse of process. After exhausting all appeal options in the UK, the case went before the ECHR.
The ECHR found the UK in violation of Article 4 of the European Convention on Human Rights (prohibition of slavery and forced labour) by ruling that, while the decision to prosecute victims of trafficking is not prohibited as such, it can nonetheless undermine the duty of the state in cases where they are or ought to be aware that a person is a victim of human trafficking. The ECHR found that, as the UK has argued, the CPS were not restricted by the determination of the qualified authority in launching a prosecution, but the judges ruled that the CPS did need to give clear reasoning as to why they would ignore the determination that the persons who were to be prosecuted were victims of human trafficking. By failing to provide this reasoning, the ECHR held, the UK had created an impediment that affected the rights of the two minors to a fair trial under Article 6 (1) of the European Convention on Human Rights.
The ruling has been hailed as a victory for victims of trafficking, with both the current and the former UN Special Rapporteur on Trafficking in Persons repeating earlier calls for children who are victims to be protected, rather than punished as criminals.
The UK and Human Trafficking
The fact that the case was prosecuted in the UK in the way that it was is surprising given the raft of relevant measures adopted by the UK in recent years, illustrating that lessons have not been learned. The UK has implemented a number of protocols and conventions and has enacted primary legislation dealing with human trafficking. Notably, in 2003 the UK adopted the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children’. Article 6 of the Protocol covers ‘assistance to and protection of victims of trafficking in persons’. In 2009, the UK implemented the ‘Council of Europe Convention on Action against Trafficking Human Beings’, a key part of which included the National Referral Mechanism (NRM) that helps countries to determine whether someone is a victim of trafficking so that they can be identified and assisted with appropriate services and support.
The NRM provides a way for all agencies (including the police, the UK Border Agency, local authorities, and NGOs) to cooperate and facilitate victim access to advice, accommodation, and support. In a similar vein, Section 45 of the Modern Slavery Act 2015 incorporates a defence justification for slavery or trafficking victims who commit an offence. Given the provisions in the legislation to which victims of trafficking have recourse, and the acceptance by the ‘competent authority’ that both minors were indeed victims of trafficking, the determination by the ECHR should have been reasonably expected. It could, however, have far-reaching consequences.
The number of NRM referrals has increased year-on-year since 2009, likely due to greater awareness of the NRM process, though an increase in modern slavery cannot be ruled out. In 2019, 10,627 potential victims were referred to the NRM; children made up 43% of these. The number of claims of coerced criminality continued to increase during 2019, overtaking both labour and sexual exploitation for the first time. One reason for these trends is increased awareness of the victims of coerced criminality. However, the true scale of human slavery remains unknown.
In terms of coerced criminality, an important form of exploitation relates to ‘county lines’, a term used by police to refer to the distribution of illegal drugs by organised criminal networks from UK cities to other parts of the country, often through the exploitation of children, young people and vulnerable adults. The use of children to transport and sell drugs in county lines operations has been described as a form of modern slavery. The first successful prosecution using the Modern Slavery Act 2015 in this context was made only last year against Zakaria Mohammed who trafficked children aged 14 and 15 to sell crack cocaine and heroin.
In recognition of the particularly vulnerable position of children trafficked to and within the UK, a specifically tailored response by the government included Section 48 of the Modern Slavery Act 2015 which made provision for Independent Child Trafficking Guardians (ICTGs) in England and Wales. The role of ICTGs is to provide specialist independent support for trafficked children and ensure that their best interests are reflected in decisions made by public authorities.
What Does This Ruling Mean for the UK?
Given the raft of measures outlined above and adopted by the UK government, one has to wonder why, almost 20 years since the adoption of the UN Protocol, child victims of trafficking such as A.N and V.C.L are still prosecuted and convicted by UK courts. Clearly, there is a problem. On the other hand, evidence suggests that some children, in particular those referred through the NRM, are attractive to criminals who regard them as immune from prosecution. In county lines networks, it would appear that arrested children are being told by their criminal masters to state they acted under duress so that they are released without charge to continue to be exploited.
What is therefore needed is sufficient resourcing to ensure that children are put at arm’s length from their exploiters and are properly safeguarded. This requires resources, both financial and human. Unfortunately, the ICTGs introduced to support victims exist in very few pilot areas and lack both the specialist experience and credibility of dealing with county lines to provide an effective safeguarding response. An injection of an additional £2 million extra funding for ICTGs promised in 2018, to be introduced in a third of all local authority areas, highlights a funding shortfall given the widespread impact of county lines across most police forces in England and Wales. At the same time, what this ruling indicates is the need for training, not just for prosecutors, but for first responders, in particular the police.
Keith Ditcham is a Senior Research Fellow and (Acting) Director of RUSI’s Organised Crime and Policing Research Group.
Iisa Kosonen is completing her BSc in Security and Crime Science at University College London.
The views expressed in this Commentary are the authors’, and do not represent those of RUSI or any other institution.
Dr Keith Ditcham
Former Senior Research Fellow