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The European Court of Human Rights confirms decision to prosecute victims of trafficking for cannabis cultivation was a breach of their human rights (17 February 2021)

Date: 17/02/2021
Duncan Lewis, Main Solicitors, The European Court of Human Rights confirms decision to prosecute victims of trafficking for cannabis cultivation was a breach of their human rights

The European Court of Human Rights (ECtHR) handed down judgment today in the cases of

Case of V.C.L. and A.N. V The United Kingdom

(Applications nos. 77587/12 and 74603/12)

A.N. was an immigration client of Duncan Lewis Solicitors, challenging his conviction.

This was the first time the Court had been asked to consider the application of the non-punishment provision at Article 26 of the Council of European Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention) and its relationship with Article 4 of the European Convention of Human rights and the positive obligations it imposes.

Article 4 of the Convention concerns the prohibition of slavery and forced labour. It requires:


  1. No one shall be held in slavery or servitude.

  2. No one shall be required to perform forced or compulsory labour


Both Applicants were Vietnamese nationals, found conclusively to be child victims of trafficking by the UK Competent Authorities but whose convictions for cannabis cultivation had been upheld by the UK domestic Court of Appeal on the grounds that at the time of their original prosecutions, neither appellant had been recognised as a victim of trafficking. The judgement can be found here.

The ECtHR examined whether, by prosecuting the applicants for criminal offences connected to their work in cannabis factories, the state had failed in its duty to protect them as victims of trafficking. It found that it did and found a breach of Article 4 in the decisions by the CPS to prosecute and in its subsequent decisions to maintain the view that the applicants were not victims of trafficking, contrary to the decisions of the UK Competent Authority.

The Court confirmed that both national and transnational trafficking in human beings falls within the scope of Article 4 and that Member States’ positive obligations under Article 4 must be construed in the light of the obligation in the Anti-Trafficking Convention to require prevention as well as victim protection and investigation. While Article 26 did not prohibit the prosecution of victims, the Court stressed:

159. Nevertheless, the Court considers that the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked. In the Court’s view, the duty to take operational measures under Article 4 of the Convention has two principal aims: to protect the victim of trafficking from further harm; and to facilitate his or her recovery. It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future

The Court found that an identification of victims of trafficking by trained and qualified individuals must take place before any decision to prosecute.

The Court held:

  • There had been a violation of Article 4 and the positive obligation to investigate whether the applicants were victims of trafficking as given the circumstances of their discovery in cannabis cultivation, there was a credible suspicion they had been trafficked.

  • There had been a violation of Article 6 and the right to a fair trial in that:

    • There was a failure to assess whether the applicants were victims of trafficking prior to prosecution

    • The effect of their guilty pleas did not waive their right to assert reliance on fair trial guarantees

    • The criminal proceedings were not fair as a whole because of the UK’s violation of the positive obligation under Article 4. The failure of applicants to identify themselves on initial encounter as victims of trafficking did not excuse the State’s failure to take operational measures to protect them.


    Both applicants were awarded substantial damages and their legal costs.

    A.N. was represented before the ECtHR by Parosha Chandran of One Pump Court Chambers, instructed by the AIRE Centre in this application.

    Duncan Lewis Solicitors’ Immigration, Civil Liberties and Human Rights Director, Zofia Duszynska, said;

    ‘I am delighted by this outcome. I have been acting for A.N. in his immigration case for 10 years now and it has been a long journey to reach this point.’

    A.N. was first encountered in the UK in 2009 aged 16. He was prosecuted for cannabis cultivation and received a detention and training order sentence of 18 months. This was reduced on appeal in 2012 to four months’ supervision and training.

    https://www.bailii.org/ew/cases/EWCA/Crim/2012/189.html

    In the meantime, A.N. claimed asylum. He was recognised conclusively by the Home Office as a victim of trafficking but refused asylum and deportation ordered. Represented by Zofia Duszynska, then at Hammersmith & Fulham Law Centre, and instructing Parosha Chandran, he appealed this decision. Three times the Home Office made a decision to deport A.N. On two occasions, they withdrew the decision and agreed to reconsider. A third decision to deport was eventually dismissed following an oral appeal hearing in 2014. Nonetheless, the Home Office still failed to make a new asylum decision or to grant discretionary leave on the basis of his family or personal circumstances until 2020 when he received 30 months’ leave to remain.

    The impact of this judgment is huge. The applicant’s life has been blighted by the criminal conviction. It has delayed decisions on his immigration matter for over 10 years, had a detrimental effect on his mental health and on the outcomes of his asylum and leave applications. It also created obstacles in his private and family life which undoubtedly affected his recovery. It is hoped that this outcome will go some way to redressing the balance. He says:

    ‘I am very grateful to my barrister, Parosha Chandran, for having fought this case for me for so long. I was a child when I came to the UK and it was very difficult to explain to anyone what had happened to me. Instead I was sent to prison. Even though the Home Office accepted I was a victim of trafficking and my sentence was reduced to four months in 2012, they still pursued deportation proceedings against me three times. I did not receive a decision on my asylum claim until 2020 when my claim was refused. Even though I now have limited leave to remain, the Home Office still refuses to accept I am a victim of trafficking. This judgment from the European Court will make a huge difference to my life.’


    Contact

    Contact Immigration, Civil Liberties and Human Rights Director, Zofia Duszynska at zofiad@duncanlewis.com for more information

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