CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 juin 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4CED6078 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:14.75pt; font-size:10pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sB9F7F539 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 19 June 2018   FIRST SECTION Application no. 74603/12 A.N. against the United Kingdom lodged on 21 November 2012 STATEMENT OF FACTS The applicant, A.N., is a Vietnamese national, who was born in 1992 and lives in London. He is represented before the Court by Mr M. Evans of The Aire Centre, a charitable organisation based in London. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s conviction and sentencing On 21 April 2009 police officers discovered the applicant, together with a number of other Vietnamese nationals, close to a cannabis factory in London. They were all arrested. Upon his arrest, GBP 70 was found on the applicant. With the assistance of an interpreter, he was interviewed at a police station. As he initially gave his date of birth as 22 April 1972, he was treated as an adult (it was later accepted that his actual date of birth was 22 April 1992). 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 met some Vietnamese people, including a man (“H”) who gave 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 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. The 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. Following the interviews the applicant was charged with being concerned in the production of a controlled drug of Class B, namely cannabis. At a hearing before the Magistrates’ Court on 30 April 2009 the applicant gave his date of birth as 22 April 1992. The case was thereafter approached on the basis that he was seventeen years old. The prosecution conducted a file review on 1 June 2009. They appear to have considered that the appellant 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. The 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. Counsel saw the applicant in conference on 1 July 2009, taking instructions directly from him with the assistance of a translator. He told counsel that he had fled his home in Vietnam and come to the United Kingdom illegally via the Czech Republic. Upon arrival he contacted a cousin in London. While looking for work, some Vietnamese people had introduced him to H, who provided him with accommodation, food and money. He was then 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 discovered that the plants were cannabis and asked to leave. He was threatened that if he left he could or would be killed. Although on one occasion he went with some co ‑ workers to the home of one of their relatives, H contacted them there and as a result of further threats they returned to the factory. As the 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 applicant pleaded guilty in July 2009. Following his “guilty” plea, a pre-sentence report was prepared by a member of the Youth Offending Team. The report indicated that the 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. On 25 September 2009 the 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. 2.     Subsequent findings regarding the applicant’s status as a victim of trafficking In April 2010 the 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 (“NSPCC NCTAIL”). In an interview with a social worker from NSPCC NCTAIL, the 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 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. Based on the interview, the social worker concluded that there were reasonable grounds for considering the 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 farm; 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 farm; he was locked into the cannabis farm and told he would be killed if he left; and he was forced to live in unhealthy conditions at the farm, without payment. The applicant’s case was subsequently considered by a Competent Authority (see Domestic Law and Practice section below). On 16   November 2010 the United Kingdom Border Agency notified him that the Competent Authority had concluded that he had been trafficked. 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. The 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 for the assault by the police, and he met the criteria for a major depressive disorder (“PTSD”). 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 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 interview was carried out in a less distressing context, by a professional experienced in dealing with child victims of human trafficking. 3.     The applicant’s appeal against conviction and sentence The applicant subsequently sought permission to appeal out of time against his conviction and sentence. His appeal was joined to that of another Vietnamese applicant who had pleaded guilty to offences involving the production of cannabis (V.C.L., who also has an application pending before this Court – see application no. 77587/12). The applicants argued that they should not have been prosecuted in the first place, as their prosecution contravened the United Kingdom’s obligations under Article 26 of the Trafficking Convention (the “non-punishment provision” – see below). In particular, the applicant 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; and that those who represented him should have alerted the CPS to the trafficking issue. In a judgment handed down on 20 February 2012, the Court of Appeal dismissed the appeal. It found, in particular, that Article 26 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 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.” 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 applicant’s case, the court dismissed his appeal against conviction. It noted first, that in making the decision to prosecute the applicant, the CPS did not have the advantage of UKBA’s finding that the applicant 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. Moreover, the court expressed doubts about the value of the expert evidence which came to light following the applicant’s conviction and sentence. 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 applicant’s account of events. In the view of the court, the finding that the applicant was “smuggled” rather than “trafficked” to the United Kingdom was one which it had been open to the CPS to reach. In addition, the new material did not support the contention that the applicant 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. Consequently, his conviction could not be said to be unsafe. However, in view of the 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. An application for leave to appeal to the Supreme Court was refused. B.     Relevant domestic law and practice 1.     Modern Slavery Act 2015 The Modern Slavery Act 2015 (“the 2015 Act”), which came into force on 31 July 2015, made comprehensive provision in respect of human trafficking. Section 45 sets out the conditions which have to be satisfied for a defence to arise where there is a nexus between trafficking and a crime committed: “ 45.     Defence for slavery or trafficking victims who commit an offence (1)     A person is not guilty of an offence if— (a)     the person is aged 18 or over when the person does the act which constitutes the offence, (b)     the person does that act because the person is compelled to do it, (c)     the compulsion is attributable to slavery or to relevant exploitation, and (d)     a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (2)     A person may be compelled to do something by another person or by the person’s circumstances. (3)     Compulsion is attributable to slavery or to relevant exploitation only if— (a)     it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b)     it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (4)     A person is not guilty of an offence if— (a)     the person is under the age of 18 when the person does the act which constitutes the offence, (b)     the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c)     a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act. (5)     For the purposes of this section— “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. ...” Prior to the coming into force of the relevant provisions of the 2015 Act, there was no statutory provision in the United Kingdom which transposed into domestic law the State’s obligations under international conventions towards those victims of human trafficking who committed crimes where there was a nexus between the crime and the trafficking. Therefore, in cases where the defence of duress was not likely to be applicable, it was left to the judiciary and to the Crown/CPS to develop a legal regime in which the State’s international obligations were given effect. 2.     Relevant guidance In 2007 the Government published “Safeguarding Children who may have been Trafficked”. The publication provided the following definitions: “The most common terms used for the illegal movement of people – ‘smuggling’ and ‘trafficking’ – had very different meanings. In human smuggling, immigrants and asylum seekers pay people to help them enter the country illegally, after which there is no longer a relationship. Trafficked victims are coerced or deceived by the person arranging their relocation. On arrival in the country of destination, the trafficked victim is forced into exploitation by the trafficker or the person into whose control they are delivered or sold.” The publication also drew attention to the (then current) Code for Crown Prosecutors, which provided that children coerced into criminal activity were victims of abuse and should not be criminalised. Even when the defence of duress would not be available, the decision whether it was in the public interest for the child to be prosecuted was directly engaged. Similarly, the CPS Guidance on Human Trafficking and Smuggling (which was last updated, prior to the applicant’s arrest, on 4 February 2009) emphasised the importance of understanding the difference between persons who are smuggled and those who are trafficked. The Guidance identified a special category of “young defendants” – including those involved in the cultivation of cannabis plants – who may “actually be a victim of trafficking”. It continued: “Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully ... Any youth who might be a trafficked victim should be afforded the protection of our childcare legislation if there are concerns that they have been working under duress or if their wellbeing has been threatened.” On 22 April 2009 the Child Exploitation and On Line Protection Centre representing the Association of Chief Police Officers issued its analysis of the threat of child trafficking in the United Kingdom. It indicated, inter alia , that a significant number of minors from Vietnam had entered the United Kingdom undetected. The number was greater than previously understood, and one form of exploitation, among many others, was forced labour in the cultivation of cannabis. Finally, the United Kingdom Government “Trafficking Toolkit” was published in October 2009. Referring to the definition of trafficking found in Article 4 of the Council of Europe Trafficking Convention, it once again underlined the difference between trafficking and smuggling, both by reference to the nature of the crime and the relationship between the person organising the entry of the migrant and the migrant himself. Specific attention was drawn to the Trafficking Convention and the measures designed to protect victims of trafficking, including “the possibility of not imposing penalties on victims for their involvement in unlawful activities, if they were compelled to do so by their situation”. 3.     National Referral Mechanism On 1 April 2009, to coincide with the coming into force of the Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (see below) the Government created the National Referral Mechanism with Competent Authorities being responsible for making conclusive decisions on whether a person has been trafficked for the purpose of exploitation. The Competent Authorities are a unit of the National Crime Agency within the Home Office Immigration and Visa Section. 4.     R. v. M(L) [2010] EWCA Crim 2327 In this case the Court of Appeal considered three distinct appeals concerned with alleged failures to implement Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (being the “non-punishment provision” – see below). The court made the following comments: “The United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual’s cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster’s Licensing Authority and a number of other bodies. These agencies are charged with the identification of persons who have ‘reasonable grounds for being treated as a victim of trafficking’. That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually is a victim of trafficking, but rather that there are reasonable grounds to believe that they may be. The application of Article 26 In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity (‘duress of circumstances’). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed ‘abuse of process’. The defences of duress and/or necessity (‘duress of circumstances’) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see R v Z [2005] 2 AC 467. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity... The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences. ... The effect of that [guidance] is to require of prosecutors a three-stage exercise of judgment. The first is: (1) is there a reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not. The first step is not limited to reacting to any assertion of trafficking. Article 10 makes clear that States must take active steps to consider the question whenever it is a realistic possibility. For obvious reasons, one of the consequences of trafficking, especially far from home, may be to inhibit the victim from complaining. The vital additional third obligation is consistent with the requirements of Article 26, which, it is clear, uses the word ‘compelled’ in a general sense appropriate to an international instrument, and is not limited to circumstances in which the English common law defences would be established. ... It is necessary to focus upon what Article 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims. It follows that the application of Article 26 is fact-sensitive in every case. We attempt no exhaustive analysis of the factual scenarios which may arise in future. Some general propositions can perhaps be ventured. i)     If there is evidence on which a common law defence of duress or necessity is likely to succeed, the case will no doubt not be proceeded with on ordinary evidential grounds independent of the convention, but additionally there are likely to be public policy grounds under the convention leading to the same conclusion. ii)     But cases in which it is not in the public interest to prosecute are not limited to these: see above. iii)     It may be reasonable to prosecute if the defendant’s assertion that she was trafficked meets the reasonable grounds test, but has been properly considered and rejected by the Crown for good evidential reason. The fact that a person passes the threshold test as a person of whom there are reasonable grounds to believe she has been trafficked is not conclusive that she has. Conversely, it may well be that in other cases that the real possibility of trafficking and a nexus of compulsion (in the broad sense) means that public policy points against prosecution. iv)     There is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside Article 26. v)     A more difficult judgment is involved if the victim has been a trafficked victim and retains some nexus with the trafficking, but has committed an offence which arguably calls, in the public interest, for prosecution in court. Some of these may be cases of a cycle of abuse. It is well known that one tool of those in charge of trafficking operations is to turn those who were trafficked and exploited in the past into assistants in the exploitation of others. Such a cycle of abuse is not uncommon in this field, as in other fields, for example that of abuse of children. In such a case, the question which must be actively confronted by the prosecutor is whether or not the offence committed is serious enough, despite any nexus with trafficking, to call for prosecution. That will depend on all the circumstances of the case, and normally no doubt particularly on the gravity of the offence alleged, the degree of continuing compulsion, and the alternatives reasonably available to the defendant.” 5.     R. v. L(C) [2013] EWCA Crim 991 In this appeal, brought by three children and one adult who were trafficked by criminals and themselves prosecuted and convicted, the Court of Appeal indicated that “the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” 6.     R. v. Joseph and Others [2017] EWCA Crim 36 In November 2016 the Court of Appeal heard appeals by six applicants who argued that they should not have been prosecuted as there was a nexus between their crimes and their status as victims of trafficking (V.C.L. was one of these applicants, having had had his case referred back to the Court of Appeal following an application to the Criminal Cases Review Commission). Before the Court of Appeal Anti-Slavery International submitted, as interveners, that in order to comply with international conventions the court should develop the law of duress so that persons who could not avail themselves of section 45 of the Modern Slavery Act 2015 (which reflected the “non-punishment provision” in the Trafficking Convention – see below) because it was not in force at the relevant time would be in the same position as those who could rely on it. In its judgment of 9 February 2017, the court rejected that submission, finding that the courts had already developed domestic law to ensure that it was in accordance with the United Kingdom’s international obligations. In the case of minors, the court reiterated that once it was established that a child was the victim of trafficking for the purposes of exploitation, the relevant question was whether there was a sufficient nexus between the trafficking and the offence; it was not necessary to show there was compulsion to commit the offence (as would be required in the case of an adult). Although the court accepted that this was not clear from the 2009 CPS guidance, it considered that both the 2011 and the 2015 guidance were more explicit. With regard to the relationship between the Competent Authority and the CPS, the court noted that the latter was not bound by a decision of the former. C.     Relevant international law and practice 1.     United Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”) Article 3 of the Palermo Protocol, ratified by the United Kingdom on 9   February 2006, provides that: “For the purposes of this Protocol: (a)     ’Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b)     The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c)     The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article; (d)     ’Child’ shall mean any person under eighteen years of age.” 2.     Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (“the Trafficking Convention”) In addition to adopting the same definition of trafficking in human beings as the Palermo Protocol (see Article 4), Article 10 of the Trafficking Convention, which came into force in respect of the United Kingdom on 1   April 2009, provided: “1     Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2     Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. 3     When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age. 4     As soon as an unaccompanied child is identified as a victim, each Party shall: a   provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child; b   take the necessary steps to establish his/her identity and nationality; c   make every effort to locate his/her family when this is in the best interests of the child.” Article 26 contained the following “non-punishment provision”: “Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.” 3.     Directive 2011/36 on preventing and combatting trafficking in human beings The 2011 Directive, which has had direct effect since 6   April   2013, provides as relevant: “Recital (14) Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in. ... Article 2 Offences concerning trafficking in human beings 1.     Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2.     A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3.     Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4.     The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. ... Article 8 Non-prosecution or non-application of penalties to the victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2. Article 9 Investigation and prosecution 1.     Member States shall ensure that investigation into or prosecution of offences referred to in Articles 2 and 3 is not dependent on reporting or accusation by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement. 2.     Member States shall take the necessary measures to enable, where the nature of the act calls for it, the prosecution of an offence referred to in Articles 2 and 3 for a sufficient period of time after the victim has reached the age of majority. 3.     Member States shall take the necessary measures to ensure that persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3 are trained accordingly. 4.     Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3.” COMPLAINTS The applicant complains under Article 4 of the Convention that the United Kingdom failed to uphold its duty to investigate his traffickers; that it failed in its duty to identify him as a victim of trafficking when he first came to the attention of the authorities; that it failed to apply the appropriate test to identify a child victim of trafficking, and that in fact the Court of Appeal applied a test of compulsion which was prohibited by law; and that it failed to honour the non-criminalisation of victims of trafficking for status-related offences. The applicant further complains under Article 6 of the Convention that the Court of Appeal did not respect the Competent Authority’s finding that the applicant had been trafficked when it evaluated the lawfulness of his conviction; and that it unlawfully applied the compulsion test.   QUESTIONS TO THE PARTIES 1.     Given that the applicant was recognised as a victim of trafficking by the United Kingdom Border Agency, can he claim to be a victim of a violation of Article 4 of the Convention within the meaning of Article 34?   2.     Given that the applicant did not expressly rely on Article 4 before the domestic courts, and has not sought to complain before those courts about any failings in the criminal investigation into his trafficking, to what extent could it be said that has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention?   3.     To what extent can – and should – the positive obligations under Article 4 of the Convention extend to the criminal prosecution of victims of trafficking, where there is a nexus between the offence and the trafficking?   4.     Having regard to all the circumstances of this case, has there been a violation of Article 4 of the Convention?   5.     Does a sentencing hearing following a guilty plea constitute a “determination of a criminal charge” within the meaning of Article 6 § 1 of the Convention?   6.     If so, in view of the fact that the applicant pleaded guilty to the production of a Class B drug, can he be said to have waived his right to a fair trial under Article 6 of the Convention?   7.     If not, did he have a fair hearing within the meaning of Article 6 § 1 of the Convention?