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  4. Trafficked cannabis farm youths held wrongly prosecuted

Trafficked cannabis farm youths held wrongly prosecuted

16th February 2021 | human rights , criminal law | Human rights , Criminal legal aid

The United Kingdom violated the human rights of two trafficked Vietnamese youths by prosecuting them for working on cannabis farms, the European Court of Human Rights ruled today.

In a unanimous chamber judgment in VCL and AN v United Kingdom, the Strasbourg court held that there had been a violation of article 4 (prohibition of forced labour), and of article 6(1) (right to a fair trial).

Police had discovered the two working on separate cannabis farms in 2009. They were arrested and charged with drugs-related offences, to which they pleaded guilty, and given custodial sentences. A competent authority, the National Society for the Prevention of Cruelty to Children's National Child Trafficking Advice and Information Line, subsequently recognised them as victims of trafficking, but the prosecution service, on a review of its decision to prosecute, concluded that they were not. In 2012 the Court of Appeal found on the facts of each case that the decision to prosecute had been justified.

In its ruling, in which it considered for the first time the relationship between article 4 and the prosecution of potential victims of trafficking, the Human Rights Court considered that prosecution would not necessarily breach article 4. However, given the competent authority’s expertise in this area, the prosecution would have needed to present clear reasons consistent with the definition of trafficking for disagreeing with its findings, something which clearly had not happened in these cases.

Having regard to the duty to take operational measures to protect victims of trafficking, once the authorities had become aware of a credible suspicion that an individual had been trafficked, that individual should be assessed by a qualified person. Any decision to prosecute should follow such an assessment, and while the decision would not necessarily be binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different conclusion.

In both these cases, the court found that despite the existence of credible suspicion that they had been trafficked, neither the police nor the prosecution service had referred them to a competent authority for assessment. Although there had been a subsequent review, the prosecution service had disagreed with the conclusion without giving clear reasons capable of undermining it; and the Court of Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process.

The lack of any assessment of whether the applicants had been victims of trafficking might have prevented them from securing important evidence capable of helping their defence, and as such the prosecutions were also unfair and in contravention of article 6(1).

Click here to view the judgment.

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