ECtHR – V.C.L. and A.N. v. The United Kingdom, Applications nos. 77587/12 and 74603/12, 16 February 2021

Article 4 ECHR

The Court started its assessment by reiterating that the positive obligation of states under Article 4 requires prevention, victim protection and investigation through an established legislative and administrative framework. Such a framework should also include operational measures aimed at protecting victims. The obligation to investigate does not depend on a motion filed by a victim or a relative. [150-156]

Turning to cases of prosecution of victims of trafficking, the Court noted that both the Anti-trafficking Convention and the Anti-Trafficking Directive do not generally prohibit the prosecution of victims, including children. However, such a prosecution may contravene the obligation to take operational measures for the protection of suspected victims of trafficking; a criminal prosecution will adversely affect the already vulnerable state of a potential victim. [157-159]

Consequently, Article 4 requires that victims of trafficking are promptly identified as soon as there is credible suspicion of trafficking-related circumstances and in line with the Palermo Protocol and the Anti-Trafficking Convention. As the existence of trafficking circumstances may affect the criminal procedure, a decision on whether to prosecute should only be taken following an assessment made by qualified personnel; even more so in cases concerning children. Any prosecutorial decision will then have to take account this assessment and, although not bound by it, a prosecutor would have to clearly state any reasons to continue with the prosecution. [160-162]

In the present case, the Court noted that guidance published by the CPS had already identified Vietnamese minors as a specific vulnerable group and included information around the subtle and particular psychological aspects of a trafficked child’s experience. Reluctance to disclose exploitation and psychological coercion had been recognised as characteristic of such situations. Consequently, the possession of a mobile phone, the absence of a clearly carceral character of the facility or food provision could not be sufficient reasons to disregard suspicions of trafficking. Despite such suspicious circumstances, there was no referral to the competent anti-trafficking services but a criminal charge and a guilty plea following legal counselling. A subsequent recognition of the applicants’ status as a victim of trafficking by the competent authorities was disregarded with no clear reasoning. [170-174]

Moreover, the Court noted that the aforementioned CPS guidance and domestic jurisprudence clearly underline that prosecutors should be aware of protocols around trafficking and alert to the possibility of encountering such cases. [180-181]

Article 6 ECHR

The Court analysed this part of the complaint by addressing three aspects of the case:

·         Did the failure to investigate trafficking circumstances before prosecution and conviction violate Article 6?

The investigation and defence of an accused is of paramount importance, including because of the vulnerable position of the person at that stage of the proceedings. Full access to legal assistance services in order to secure their right to defence is required. In the same line, evidence regarding one’s status as a victim of trafficking is a fundamental aspect of the defence they should be able to secure. In the applicants’ cases, their lawyers failed to act appropriately, despite the social services’ findings that there were reasonable grounds to believe the children had been trafficked. [195-197]

Although criminal lawyers may fail to act upon such suspicions, this does not absolve the state from their obligation to intervene following a manifest failure by legal aid counsel to provide effective representation in line with Article 6 (3) c ECHR. Such a high threshold does not have to be reached in cases of Article 4 ECHR, since it is the state that has an obligation to protect and investigate and cannot merely rely on the legal representative’s failure or on the applicant’s inability to explain their trafficking circumstances, especially when it comes to children. Consequently, the lack of an assessment of whether the applicants had been trafficked prevented them from obtaining evidence that were fundamentally related to their defence. [198-199]

·         Did the applicants waive their rights under Article 6 ECHR by pleading guilty?

Although Article 6 does not prevent a person from waiving their right to a fair trial, such a waiver must be unequivocal, should not be against the public interest and significant procedural safeguards should accompany it. In criminal trials, one can accept a guilty plea provided they are fully aware of the facts of their case and the content/fairness of the bargain is subject to sufficient judicial review. In the absence of any assessment on whether they were trafficked, the applicants could not have been fully aware of the facts. The serious threat to human dignity that is inherent to the crime of trafficking makes such an assessment all the more indispensable. Even in the case of the first applicant, who was given an opportunity to vacate his plea, the fact that he was a minor, involved in a foreign criminal procedure and simply followed the advice of his legal representative meant that the Court could not consider him to have waived his Article 6 rights. [201-204]

·         Was the fairness of the proceedings prejudiced as a whole?

The Court noted that the CPS reviewed the decisions to prosecute the applicants even if the applicants had previously pleaded guilty. However, the CPS reasoning in disagreeing with the anti-trafficking authorities’ findings was inadequate and did not seem to follow the definition of trafficking found in the Anti-Trafficking Convention. The subsequent judicial review by the Court of Appeal mostly focused on whether there had been an abuse of process on account of misapplication of prosecutorial discretion. Even if Article 4 ECHR had been invoked, the Court did not examine the positive obligations of the state in this respect. The domestic court seemed to apply a very narrow approach in dismissing the appeals considering that only exceptionally could a defendant give fresh instructions about the facts of their case in the context of an appeal against a conviction. Such an approach effectively punishes victims of trafficking for not identifying and presenting themselves as such from the beginning. Consequently, the appellate proceedings cannot be found to have remedied the errors in the initial criminal proceedings. [205-210]