CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 février 2021

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display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   FOURTH SECTION   CASE OF V.C.L. AND A.N. v. THE UNITED KINGDOM (Applications nos. 77587/12 and 74603/12)     JUDGMENT   Art 4 • Positive obligations • Domestic authorities’ failure to take operational measures in line with international standards to protect minors prosecuted despite credible suspicion they were trafficking victims • No   initial, prompt assessment of trafficking status • Inadequate reasons provided for continuing prosecution, despite competent authority finding applicants were trafficked Art 6 § 1 (criminal) • Failure to investigate applicants’ status as potential trafficking victims affecting overall fairness of criminal proceedings • Evidence constituting fundamental aspect of their defence not secured • No   waiver through plea bargains accepted without full awareness of facts • Defect not cured by subsequent reviews by domestic authorities relying on inadequate reasons   STRASBOURG 16 February 2021   FINAL   05/07/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of V.C.L. and A.N. v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President ,   Tim Eicke,   Faris Vehabović,   Iulia Antoanella Motoc,   Armen Harutyunyan,   Pere Pastor Vilanova,   Jolien Schukking, judges , and Andrea Tamietti, Section Registrar , Having regard to: the applications (nos.   77587/12 and 74603/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Vietnamese nationals, Mr V.C.L. and Mr A.N. (“the applicants”), on 20 November 2012 and 21   November 2012 respectively; the decision to give notice to the United Kingdom Government (“the Government”) of the complaints concerning Articles 4 and 6 § 1 of the Convention; the decision to grant the applicants anonymity under Rule 47 § 4 of the Rules of Court; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by Liberty, which was granted leave to intervene in both cases by the President of the Section, and GRETA and Anti-Slavery International, who were granted leave to intervene in the case of A.N. v. the United Kingdom (no. 74603/12) by the President of the Section; Having deliberated in private on 12 January 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present applications concern the prosecution of the (then) minor applicants, both of whom were recognised as victims of trafficking by the designated Competent Authority, for criminal offences connected to their work as gardeners in cannabis factories. THE FACTS 2.     The applicants were born in 1994 and 1992 respectively and live in Middlesex and London. The applicant in application no. 77587/12 (hereinafter “the first applicant”), who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London. The applicant in application no. 74603/12 (hereinafter “the second applicant”) was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a barrister based in London at 1 Pump Court Chambers. 3.     The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office. 4.     The facts of the cases, as submitted by the parties, may be summarised as follows. The first applicant’s Conviction and sentencing 5 .     On 6 May 2009 the first applicant was discovered by police at an address in Cambridge during the execution of a drug warrant. The address was a four ‑ bedroomed house which had been converted into a sophisticated cannabis factory containing 420 cannabis plants with a street value in excess of 130,000 pounds sterling (GBP). The first applicant was found alone in the property, in possession of a mobile telephone, with credit, and GBP 100 in cash. 6 .     Following his discovery, the first applicant was interviewed in the company of a legal representative and appropriate adult. He claimed that he was fifteen years old (a fact which the Government now accept to be correct), that he had been smuggled into the United Kingdom by his adoptive father, that upon arrival he had encountered two Vietnamese nationals who took him to the address in Cambridge, and that while he realised cannabis was being grown there, he had not known that it was illegal. He was charged with being concerned in the production of a controlled drug. 7 .     Social services assessed the first applicant’s age and concluded that he would turn eighteen in January 2010. A district judge in the Magistrates’ Court subsequently found as a matter of fact that he was at least seventeen years old. 8 .     At a preliminary hearing before the Crown Court on 21 May 2009, the case was adjourned for a plea and case management hearing. A few days later Refugee and Migrant Justice, a legal advice and representation charity, informed the first applicant’s then representative of concerns that he may have been the victim of human trafficking, and that the point had been “flagged up” by social services. They further indicated that social services might raise discontinuance with the Crown Prosecution Service (the CPS) but if not the matter ought to be taken up at court. 9 .     On 13 August 2009 the first applicant had a conference with counsel. There was no record of any exploration of the trafficking issue. The first applicant initially gave “not guilty” instructions and indicated that he was scared, but on receiving counsel’s advice he confirmed that he intended to plead “guilty”. 10 .     On 20 August 2009, following the conference with counsel, the first applicant pleaded guilty to the production of a Class B drug. 11 .     On 4 September 2009, at a conference at which the first applicant was not assisted by an appropriate adult, different counsel advised him that he could apply for leave to vacate his guilty plea on the ground that he had been trafficked and subjected to forced labour. However, the first applicant instructed counsel that he was not in fear of the alleged traffickers. Nevertheless, sentencing was adjourned to await receipt of a report from social services on whether he was deemed to be the victim of trafficking. 12 .     On 14 October 2009 the CPS reviewed their decision to prosecute and concluded that there was no credible evidence that the first applicant had been trafficked. The following day, however, the CPS received a letter from the United Kingdom Border Agency (hereinafter “UKBA”) indicating that the circumstances of the first applicant’s case had been considered by one of the two Competent Authorities (see paragraphs 75-76 below) which concluded that there were reasonable grounds for believing that he had been trafficked. He was therefore granted a forty-five-day “reflection period” and his case was adjourned on the basis that this was in his best interests. 13 .     On 27 November 2009 UKBA sent a letter to the first applicant’s representative. It noted that the trafficking-related criminal investigation was still on-going but found that the first applicant’s circumstances raised the following trafficking indicators: he had been found at a cannabis factory highlighting criminality involving adults; he was not enrolled in school; and he was not allowed to leave the property. It further stated that in the light of his “credible account” – which had remained consistent in the various meetings he had had with social services – it was considered that he had been trafficked to the United Kingdom. 14 .     On 8 December 2009 the case was reviewed by the CPS lawyer but the Chief Crown Prosecutor subsequently confirmed that it should be prosecuted. Although no official reasons were given for this decision, in a letter to a Member of Parliament of 10 December the then Director of Public Prosecutions explained that the prosecution had not been discontinued because the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking. 15 .     At a hearing on 14 December 2009 the CPS argued that to be a victim of trafficking was not a defence; rather, the decision to prosecute was taken in the light of information in their possession and had to be kept under review. To apply to vacate would be pointless as duress was not a viable defence. The judge, however, indicated that an application to vacate was well-founded and set a timetable for listing in early 2010 if the application was to be made. In the cells afterwards the first applicant indicated that he wished to change his plea. 16 .     On 16 December 2009 defence counsel indicated to the first applicant’s solicitors that social services were “outrageous” in advocating a change of plea. He reiterated his view that the fact that the first applicant was not frightened and was looking after the plants in return for help in finding his family made the issue irrelevant. 17 .     At a hearing on 19 January 2010 the first applicant maintained his plea. It appears that this decision followed a meeting with his solicitors in which he was advised that the finding that he had been trafficked had not been definitively confirmed; that in any case the CPS were not required – and did not intend – to withdraw the prosecution; and that although the decision to prosecute could be challenged in the High Court, it was a lengthy process which had little prospect of success. In the Crown’s submission, the evidence suggested that the first applicant was not a trafficked person. Counsel for the Crown went through the facts in detail, noting in particular that he had been found in an ordinary house with a mobile phone, credit and money; in the trafficking assessment he had indicated that his family in Vietnam were not under threat; there were no debts owed to anyone in Vietnam; and he had not been abused prior to his arrest. They therefore found “no reason whatever” to revise their initial assessment that the first applicant should be prosecuted in the public interest. The first applicant was sentenced to twenty months detention in a young offenders’ institution. The second applicant’s conviction and sentencing 18 .     On 21 April 2009 police officers attended a residential premises in London following reports of a suspected burglary. They had been informed that a large body of men had been seen in the gardens to the rear of the premises, forcing their way in. When they got there, they discovered a very sophisticated cannabis factory. The second applicant, together with a number of other Vietnamese nationals, was found close to the premises, hiding from the marauders. They were all arrested. 19 .     Upon his arrest, GBP 70 was found on the second applicant. With the assistance of an interpreter, he was interviewed at a police station. As he initially gave his year of birth as 1972, he was treated as an adult (it was later accepted that his actual year of birth was 1992). 20 .     During the police interview he indicated that upon leaving Vietnam he had travelled to the United Kingdom via the Czech Republic. Soon after his arrival, he had met some Vietnamese people, including a man (“H”) who had given him accommodation, clothes and food for a week. While he was staying at the house he was told that it was “best for him not to go out”; however, when asked if he was held there against his will, he said no. After a week, he was taken to the cannabis factory in a vehicle which was “covered up”. According to the second applicant, the windows of the factory were bricked up, the only door was locked from the outside and he believed that the factory was guarded. His work included watering the plants and cooking. He slept, ate and worked in the factory, and he was not paid for his work. 21 .     The second applicant claimed that in the beginning he did not know that the plants in the factory were illegal. However, he became suspicious and wished to leave as he was frightened. In or around this time H allowed him to leave the factory with some others for a few days, but when he told H, in the course of a telephone call, that he did not wish to return, H told him that he might be killed if he stopped working. He and the others were then picked up and returned to the factory. 22 .     Following the interview the applicant was charged with being concerned in the production of a controlled drug of Class B, namely cannabis. 23 .     At a hearing before the Magistrates’ Court on 30 April 2009 the second applicant gave his year of birth as 1992. The case was thereafter approached on the basis that he was seventeen years old. 24.     The prosecution conducted a file review on 1 June 2009. They appear to have considered that the second applicant had been smuggled into the United Kingdom, since his parents had funded his journey to what was hoped would be a life with better prospects. 25 .     The second applicant was granted legal aid. There is a note in the instructions to his counsel indicating that he had been “trafficked into the UK”, although the source of that entry was not traced and the applicant later accepted that he had not used that term. 26 .     Counsel saw the second applicant in conference on 1 July 2009, taking instructions directly from him with the assistance of an interpreter. He told counsel that he had fled his home in Vietnam and had travelled to the United Kingdom illegally via the Czech Republic. Upon arrival he had contacted a cousin in London. While looking for work, some Vietnamese people had introduced him to H, who had provided him with accommodation, food and money. He had then been taken to work in the factory, which he initially thought was producing herbal medicine. He was mainly locked in the factory and was unable to go out. After approximately ten days he had discovered that the plants were cannabis and had asked to leave. He had been threatened that if he left he could or would be killed. Although on one occasion he had gone with some co-workers to the home of one of their relatives, H had contacted them there and as a result of further threats they had returned to the factory. 27 .     As the second applicant accepted that he could have run away from the house of his co-worker’s relative, counsel did not believe that a plea of duress would be likely to succeed. The second applicant pleaded guilty in July 2009. 28 .     Following his “guilty” plea, a pre-sentence report was prepared by a member of the Youth Offending Team. The report indicated that the second applicant regretted his decision to accept the offer to work in the factory. He accepted that his motivation had been “financial gain”, which was neither acceptable nor justifiable. He accepted responsibility for his decision to act and displayed a level of remorse. 29 .     On 25 September 2009 the second applicant was sentenced to an eighteen-month detention and training order. He was given credit for his guilty plea, and account was taken of his young age, the fact that he left Vietnam to make a better life for himself and his “excellent progress” in custody. Subsequent findings regarding the second applicant’s status as a victim of trafficking 30 .     In April 2010 the second applicant’s new solicitor referred his case to the National Society for the Prevention of Cruelty to Children National Child Trafficking Advice and Information Line (hereinafter “NSPCC NCTAIL”). 31 .     In an interview with a social worker from NSPCC NCTAIL, the second applicant indicated that his family had paid for him to travel to the Czech Republic after he was assaulted by police and almost arrested during an anti-government protest in Hanoi. He flew alone to the Czech Republic, where he was met by a man who took his passport from him. He stayed in the man’s house for around two weeks, during which time he had to stay in his room unless he was washing or cleaning. Together with two women, he was then transported to London by lorry. Upon arrival a man picked the three passengers up and drove them to the women’s house. From there he called his mother to obtain the contact details of his cousin in London. He then contacted his cousin and the women he travelled with took him to meet her at a market. They told him to return to the meeting point the next day and they would arrange work for him. The second applicant stayed with his cousin for one night but as he did not know her well – and did not know her husband at all – he did not want to intrude any further. He therefore went back to the meeting point, where he met H. 32 .     Based on the interview, the social worker concluded that there were reasonable grounds for considering the second applicant to be a victim of child trafficking from Vietnam to the United Kingdom. In particular, she noted that: there appeared to be clear links between the people who arranged his travel out of Vietnam, those who held him in the Czech Republic and moved him to the United Kingdom, and those who exploited him for work in the cannabis factory; he was either not allowed out of or was locked in the premises where he was harboured or exploited by agents; he was not informed of the criminal nature of the work in the cannabis factory; he was locked into the cannabis factory and told he would be killed if he left; and he was forced to live in unhealthy conditions at the factory, without payment. 33 .     The second applicant’s case was subsequently considered by one of the two Competent Authorities (see paragraphs 75-76 below). On 16   November 2010 UKBA notified him that the Competent Authority had concluded that he had been trafficked. While it considered that certain aspects of his claim to have been trafficked undermined his credibility – the fact that he was allowed to leave the agents’ supervision and stay with his cousin for one night, the fact that he had not been consistent regarding the existence of telephones in the cannabis factory, and the fact that he was allowed out of the cannabis factory – it was accepted that on the balance of probabilities there were grounds to believe that he had been trafficked into the United Kingdom. In its view, the account of the second applicant’s recruitment and movement from Vietnam to the United Kingdom satisfied the definition of trafficking under the Anti-Trafficking Convention for the purposes of labour exploitation. It also considered there to be a link between those who arranged his travel out of Vietnam, those who held him in the Czech Republic and brought him to the United Kingdom, and those who put him to work in the cannabis factory, and that he was in a position of dependency and vulnerability, which could go some way to explaining why he was allowed out of the factory and why he returned. As for the work he was doing, he was found in a place of exploitation, which was guarded and locked from the outside and the living and working conditions were consistent with those found in exploitative situations. 34 .     However, as he had turned eighteen and was not receiving any counselling, it was not accepted that he was a person “in need”. As such, he was no longer considered to be a victim of human trafficking and was not eligible for a residence permit. 35 .     The second applicant’s solicitor also instructed a psychologist, who prepared a report in March 2011. The report was based on the account that the applicant provided to the NSPCC NCTAIL interviewer. The psychologist concluded that he was suffering psychological distress as a result of multiple traumatic experiences as a minor, including an assault by the police in Vietnam and being trafficked to the United Kingdom. His symptoms met the criteria for a diagnosis of post-traumatic stress disorder (PTSD) and a major depressive disorder. In the psychologist’s opinion, his symptoms were consistent with his account of his history. Furthermore, the psychologist considered that the account given by the second applicant to the NSPCC interviewer was “broadly consistent” with the account given to the police, and the minor inconsistencies could be explained by his PTSD. In view of his history with the police in Vietnam, he would have been scared, angry and confused following his arrest. In contrast, the NSPCC NCTAIL interview was carried out in a less distressing context, by a professional experienced in dealing with child victims of human trafficking. 36 .     On 28 June 2011 a Special Casework Lawyer from the CPS reviewed the second applicant’s case in the light of updated guidance from the CPS and the conclusions of NSPCC NCTAIL and UKBA. Having particular regard to the fact that the second applicant was a child of mature years, the inconsistencies in the accounts he had given, the fact that he had a mobile phone and could have summoned help, the fact that he was allowed to see his cousin and was not held on the factory against his will, the absence of physical injury to him or any of the other “gardeners”, the fact that he had a sum of money on him when he was recovered, and the possibility that he could have escaped from the cannabis factory, she remained firmly of the view that he was not a victim of trafficking and the public interest would require a prosecution. In reaching this conclusion she considered that the second applicant’s initial accounts (see paragraphs 20 and 21 above) were probably nearest to the truth. 37 .     On 7 November 2011 NSPCC NCTAIL produced a supplemental report. In it, the social worker who prepared the previous report had regard to further documentation primarily related to the criminal proceedings and considered whether it was necessary to change the opinion set out in the earlier report (see paragraphs 31-32 above). She concluded that there was no new material in these documents which would cause her to change her professional opinion. In fact, she considered that the material in some of the documents combined with her increased experience in the area of child trafficking strengthened her conclusion that the second applicant was a victim of trafficking at the time of his arrest. In this regard, she pointed out that accounts given by potential child victims of trafficking to different professionals, in different contexts, were rarely entirely consistent with each other. The applicants’ appeal against conviction and sentence 38 .     The first applicant sought permission to appeal – out of time – against conviction and sentencing. He argued that he should have been advised to vacate his plea and an application to stay the proceedings should have been made because he was a credible victim of trafficking and, as such, should not have been prosecuted. He also complained that there was no appropriate adult present when he decided not to change his plea, and that the CPS failed to confirm why it was in the public interest to prosecute. 39 .     As it was one of the first cases in which the problem of child trafficking for labour exploitation was raised following the coming into force of the Council of Europe Convention on Action Against Trafficking in Human Beings (“the Anti-Trafficking Convention”), permission was granted. The court commented “... it does appear to the court that there are two matters of potential concern. First, there is an appearance that something has gone wrong when one arm of the State (the Home Office) has accepted that a person has been trafficked, but another arm of the State (CPS) has reached the opposite conclusion seemingly without knowledge of the former. It is arguable that as a matter of public law once the government, through the Home Office, has accepted that a person has been trafficked, the CPS ought to proceed on the same basis unless there is some strong reason to do otherwise. Secondly, the applicant appears not to have been given adequate advice about his position, which was an unusual one.” 40 .     The second applicant also sought permission to appeal out of time against his conviction and sentence. In his perfected grounds of appeal against conviction he argued, inter alia , that his conviction was unsafe because as a minor and victim of trafficking and forced labour contrary to Article 4 of the Convention he had been entitled to protection rather than prosecution. In particular, he argued that the CPS should have carried out a much greater investigation into whether he had been trafficked into the United Kingdom and exploited in a cannabis factory. He relied in part on the evidence of a Children’s Services Practitioner at NSPCC NCTAIL who, referring to guidance published by the CPS and the Association of Chief Police Officers (ACPO – see paragraph 74 below), argued that the appropriate response in the second applicant’s case would have been for the police to have made a referral to the local authority children’s services as soon as he was recovered from the cannabis factory. The police should then have shared as much information as possible to help children’s services undertake the appropriate trafficking assessment and other welfare needs should have been identified and responded to within a safeguarding and child protection context. The grounds of appeal also referred to a report by the Child Exploitation and Online Protection Command (CEOP, a command of the National Crime Agency – see paragraphs 81-83 below) which indicated that in spite of the fact that any child identified in a cannabis factory was likely to be a victim of trafficking, there had been a trend towards prosecution rather than protection of Vietnamese children found on these factories. 41 .     The second applicant further argued that the common law defence of duress was unsuitable to cases concerning child trafficking victims, since a trafficked child could not in law consent to his or her own trafficking. 42 .     Permission was granted and his appeal was joined to that of the first applicant. 43 .     In a judgment handed down on 20 February 2012, the Court of Appeal found that Article 26 of the Anti-Trafficking Convention (the so ‑ called “non-punishment provision” – see paragraph 103 below) was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities; nor could it extend the defence of duress by removing the limitations inherent in it. Summarising the essential principles derived from recent case-law, it noted that the implementation of the United Kingdom’s obligations under the Anti-Trafficking Convention was “normally achieved by the proper exercise of the long established prosecutorial discretion which enables the Crown Prosecution Service, however strong the evidence may be, to decide that it would be inappropriate to proceed or to continue with the prosecution of a defendant who is unable to advance duress as a defence but who falls within the protective ambit of Article 26. This requires a judgment to be made by the CPS in the individual case in the light of all the available evidence. That responsibility is vested not in the court but in the prosecuting authority. The court may intervene in an individual case if its process is abused by using the ‘ultimate sanction’ of a stay of the proceedings. The burden of showing that the process is being or has been abused on the basis of the improper exercise of the prosecutorial discretion rests on the defendant. ... The fact that it arises for consideration in the context of the proper implementation of the United Kingdom’s Convention obligation does not involve the creation of new principles. Rather, well established principles apply in the specific context of the Article 26 obligation, no more, and no less. Apart from the specific jurisdiction to stay proceedings where the process is abused, the court may also, if it thinks appropriate in the exercise of its sentencing responsibilities implement the Article 26 obligation in the language of the article itself, by dealing with the defendant in a way which does not constitute punishment, by ordering an absolute or a conditional discharge.” 44.     The court identified the principal issue in the appeals to be whether the process of the court was abused by the decision of the prosecuting authority to prosecute. However, having fully considered the facts of the applicants’ cases, the court dismissed their appeal against conviction. 45 .     In respect of the first applicant, the court stated that: “Opening the case for the Crown, counsel focused on the evidence which suggested that the appellant could not be described as a trafficked person. He was found with cash on him. He was provided with a mobile phone and credit for use with that phone. The house was an ordinary house, far from a make-shift prison, where the defendant said he had been left and provided with groceries at weekly intervals. The account given by the appellant in interview in which he said that he arrived seeking an adoptive father was contrasted with what he said in the Trafficking Assessment. When asked questions to identify who this adoptive father might be, he was unable to provide any comprehensible explanation. His movements about the country after his arrival, and his allegedly accidental presence in Cambridge, when he had simply bumped into two further co-nationals who offered him the opportunity of going to Cambridge was inconsistent with having been the victim of trafficking. Over the months the account had developed of some ‘mild pressure or threats’ being put to the defendant but the Trafficking Assessment itself provided information that the appellant was clear that his family in Vietnam was not under threat, that there were no debts owed to anyone in Vietnam, and that he had not been abused prior to his arrest. The Crown examined the facts in detail and had come to the conclusion that there was no ‘reason whatever to revise their initial assessment of the public interest that the appellant’ was someone who should be prosecuted. Given the meticulous care and detailed examination of all the relevant evidence made both by counsel for the Prosecution and the Crown Prosecution Service, and the fair and balanced approach taken by Judge [C] throughout these protracted proceedings, the prospects for this appeal were unpromising. In essence, the argument advanced by [counsel] proceeds on the basis that given the information available to the defence at the time when the case proceeded to sentence, an application should have been made to vacate the guilty plea. However, as he accepts, there was nothing to suggest that the plea could be considered a nullity, or that the theoretical defence of duress would have had any realistic prospect of success. Nevertheless if the application to vacate the plea had been made, and then granted, on the basis of the appellant’s youth and the findings in his favour in relation to trafficking, the judge would then have been invited to consider an application to stay the prosecution, and presumably, that [sic.] if such an application had been made, the judge would have granted it. This is all entirely speculative, and does not address the reality. Even if the judge might have been persuaded to allow the appellant to vacate his plea for the argument in support of an order for the stay of proceedings to be mounted, the inevitable outcome of any such hearing would have been that the decision to continue the prosecution was fully justified. On the facts, the decision to prosecute was amply justified. That would have been the view formed by Judge [C], and it is the unhesitating conclusion which we have reached.” 46.     The court did, however, allow the first applicant’s appeal against sentencing as it found that, given his age and guilty plea, a twelve-month custodial sentence would have been sufficient. 47 .     With regard to the second applicant, it noted that in taking the decision to prosecute him, the CPS did not have the advantage of UKBA’s finding that he was a child victim of human trafficking. However, even if that report had been available, UKBA and the CPS exercised different responsibilities and neither could bind the other. The court made the following remarks: “In essence, the argument in support of the contention that the conviction is unsafe was, at any rate to begin with, based on the stark proposition that everyone involved in the case missed the real point, that the appellant fell squarely within the provisions of Article 26 of the Convention, and that he had been trafficked into the country. [Counsel] argued that the Crown Prosecution Service should have carried out a much greater investigation into the question whether the appellant had been trafficked into this country and exploited in the cannabis factory; that those who acted for the appellant should have alerted the Crown Prosecution Service to the same problem and invited them to conduct further investigations; and indeed at one stage that the judge herself had been remiss in failing to recognise the problem and requiring its further investigation. [Counsel] advanced sustained submissions critical of the process of which the sentence was the culmination. In part he relied on the contemporaneous Guidance and Codes of Practice which form part of the publications noted earlier in the judgment. On close analysis his submissions appeared to mean the many thousands of individuals who might, in the course of their duties, become involved in the investigation and prosecution of offences should be deemed to know and fully appreciate the ambit and potential impact of every single publication offering guidance or advice whenever an individual who may possibly fall within the Convention is arrested. This is somewhat unrealistic. Although there must, inevitably, be broad understanding of the way in which different bodies vested with these responsibilities are operating, the CPS, or ACPO, or indeed each other responsible body, cannot immediately appreciate every item of guidance or advice issued by every other body. In this particular case, for example, the Child Exploitation and On Line Protection Centre representing ACPO issued its report on the very day on which [the applicant] himself was interviewed after his arrest. In any event, it appears to us that in the initial stages after the implementation of the Convention the primary focus of attention was the distinction between those who were ‘smuggled’ into the country and those who were ‘trafficked’ into it. But, more important, the criticisms ignore the facts, and in particular the impact of the appellant’s accounts in interview, to his lawyers, and the writer of the Pre-sentence Report about the circumstances in which he became an immigrant into this country and worked in the cannabis factory. These accounts were, it must be emphasised, the instructions and the explanations provided by the appellant himself. The evidence available to those who were acting for him, that he had been ‘smuggled’ as a volunteer, was unanswerable. Moreover it appeared that he made the choice to start working with [H] rather than find work at or near the safe home provided by his cousin, and that he chose to work, at first without apparent difficulty. Thereafter the appellant’s period of work in the cannabis factory before his arrest was very short lived. It had been interrupted by a not insignificant break. He was in possession of cash. After his arrest he had continued in communication with his family in Vietnam and his cousin in England, without suggesting that he had made any complaint or expressed any concern. Despite [counsel’s] efforts to persuade us to the contrary view, at this date there was no evidence before the Crown Court, or for that matter the CPS or indeed the defence, which suggested that the appellant had been trafficked into this country, or that he fell within the protective ambit of Article 26. Rather the effect of the evidence was that he was a volunteer, ‘smuggled’ into this country to make a better life for himself and that he had a home with a family member to which he could have gone and where he would have been welcome. The essential point in mitigation, correctly taken on the basis of the appellant’s instructions, was that he was very young, and in a vulnerable position as an illegal immigrant, and that in his short time working in the cannabis factory, like his co-defendants, he had been exploited by others. That provided real mitigation, but in the light of the facts as they appeared to be, and on the basis of the Guidance to Prosecutors then current, the decision to prosecute rather than to conduct further investigations did not involve any misapplication of the prosecutorial discretion sufficient to justify the conclusion that this prosecution constituted an abuse of process on the basis of a breach of Article 26 of the Convention.” 48 .     The court also expressed doubts about the value of the expert evidence which came to light following the second applicant’s conviction and sentence (see paragraphs 30-37 above). This was not to impugn the good faith of the experts, but rather an acknowledgment of the fact that their conclusions were dependent on the second applicant’s account of events. In addition, the new material did not support the contention that he was a victim of forced labour. On the contrary, it suggested that he chose to work in the cannabis factory when he had available to him a safe home with a family member, and the evidence suggesting that he was “compelled” to work in those conditions was at best “nebulous”. Consequently, his conviction could not be said to be unsafe. 49.     However, in view of the second applicant’s young age, his guilty plea and the extremely short period he was working in the cannabis factory, the court indicated that it should have reduced his sentence to a four-month detention and training order. 50 .     In conclusion, the court stated that: “Just because the issues in cases which involve Article 26 of the Convention are often extremely sensitive, we have examined a vast bundle of post-conviction evidence, much of which is, on analysis, repetitive. We have also examined numerous publications and considered all the expert evidence. In the context of fresh evidence we shall identify a series of considerations of broad general effect. ... d)     It has been made plain in numerous decisions of this court, that a defendant is provided with one opportunity to give his or her instructions to his legal advisors. His defence is then considered and advanced and he is advised about his plea in the light of those instructions. It is only in the most exceptional cases that the court would consider it appropriate to allow a defendant to advance what in effect would amount to fresh instructions about the facts for the purposes of an appeal against conviction. There is no special category of exceptionality which arises in the context of Article   26.” 51.     Both applicants applied for leave to appeal to the Supreme Court. The first applicant asked that the following points of law be certified: whether the exercise of discretion by the CPS as to whether to prosecute a child found by the Competent Authority to be the victim of trafficking exhausted the United Kingdom’s obligations under domestic and international law for that child; and on what standard of proof the CPS had to find the child a credible victim of trafficking for the child not to be prosecuted. The second applicant invoked Article 4 of the Convention and submitted that the facts of the case raised a question concerning the extent to which the CPS should give weight to the positive findings of those given the responsibility for determining the status of a child who may have been trafficked. 52.     The applications for permission to appeal to the Supreme Court were refused. Subsequen