FOURTH SECTION

DECISION

Application no. 7604/19 G.S. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 23 November 2021 as a Chamber composed of:

Yonko Grozev, President, Tim Eicke, Faris Vehabović, Armen Harutyunyan, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, Ana Maria Guerra Martins, judges,

and Andrea Tamietti, Section Registrar,

Having regard to the above application lodged on 29 January 2019,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms G. S., is a Jamaican national, who was born in 1977 and lives in London. She was represented before the Court by Ms L. Janes of Scott-Moncrieff & Associates Ltd., a lawyer practising in London.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled Class A drug (cocaine). On 9 February 2007 she had been stopped by customs officers after arriving into Heathrow Airport on a flight from Trinidad. Twenty-three packets of cocaine with a street value of 37,578.40 British Pounds were recovered from her person. At trial, the defence case was that at all relevant times she had acted under duress as there were threats of serious injury or death to her and/or her young son if she had refused to comply with the demand to smuggle drugs.

4 . On 30 November 2007 the applicant was convicted and sentenced to seven years’ imprisonment and recommended for deportation.

5 . Following her release from prison in August 2010 the applicant applied for asylum in the United Kingdom. The Secretary of State for the Home Department twice refused the application but on 3 August 2015 the First Tier Tribunal allowed her appeal against the Secretary of State’s decision. In doing so, the Tribunal made a finding of fact that the applicant had been trafficked when she entered the United Kingdom carrying the drugs.

6 . Following a referral by the Salvation Army, on 17 December 2015 the Competent Authority (see V.C.L. and A.N. v. the United Kingdom , nos. 77587/12 and 74603/12, §§ 75-76, 16 February 2021) decided that, on the balance of probabilities, the applicant was a victim of trafficking.

7 . In August 2017 the applicant sought an extension of time to appeal against her conviction (see paragraph 4 above) on the basis that new evidence undermined the safety of the conviction. This new evidence comprised the decisions of the Tribunal and the Competent Authority, recognising her as a victim of trafficking; a change in the law regarding victims of trafficking accused of criminal offences; and expert medical evidence which indicated that the applicant suffered memory loss as a result of a road traffic accident, that she suffered from post-traumatic stress disorder, that her IQ of 74 was in the borderline range and that she was overly-compliant according to the Gudjonsson Compliance Scale. The medical evidence indicated that she was likely to have been very vulnerable to exploitation and less able to resist pressure at the time the offence was committed.

8 . On 31 July 2018 the Court of Appeal refused the applicant leave to appeal.

9. The Court of Appeal was entirely satisfied that there had been a material change in the law. The Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (“the Anti-Trafficking Convention”) had been ratified by the United Kingdom on 17 December 2008 and on 6 April 2013 Directive 2011/36 on preventing and combatting trafficking in human beings of 5 April 2011 (“the Anti-Trafficking Directive”) came into force in the United Kingdom. Both of these instruments contained “non-prosecution” provisions which were subsequently reflected in a number of judgments of the Court of Appeal. Moreover, section 45 of the Modern Slavery Act 2015 provided an express defence to victims of trafficking who were compelled to commit an offence.

10. Under domestic law, where leave to appeal was sought out of time in a case where the law as it then stood had been applied correctly, so that any appeal hinged on a subsequent change in the law, leave to appeal was characterised as “exceptional” and would only be granted if “substantial injustice” could be shown. Nonetheless, in the present case the Court of Appeal indicated that it would grant exceptional leave if the applicant could demonstrate an arguable case as to the unsafety of her conviction.

11 . In assessing whether this test had been met, the Court of Appeal considered that the decisions of both the Tribunal and the Competent Authority (see paragraphs 5 and 6 above) should be admitted in evidence. The essence of this material was the recognition, “essentially undisputed by the Crown”, that the applicant had been a victim of trafficking and the court considered that it would not be in the interests of justice to proceed without it. However, it did not admit the medical evidence (see paragraph 7 above) as there was no good reason why evidence of this nature could not have been obtained for use at trial, where duress had been the central issue (see paragraph 3 above). Furthermore, it had been obtained some seven to ten years after the trial had taken place and it was difficult to apply a 2014-2017 assessment of the applicant to her condition in late 2007.

12. In considering the safety of the applicant’s conviction, the Court of Appeal noted that neither the Anti-Trafficking Convention nor the Anti ‑ Trafficking Directive conferred a blanket immunity from prosecution on victims of trafficking. Instead, the State’s obligations required the careful and fact sensitive exercise by prosecutors of their discretion as to whether it was in the public interest to prosecute a victim of trafficking. In this regard, there was no closed list of factors bearing on the prosecutor’s discretion to proceed against a victim of trafficking, although factors obviously impacting the decision to prosecute went to the nexus between the crime committed by the defendant and the trafficking.

13 . Applying those principles to the case at hand, the court concluded that the applicant’s conviction was not even arguably unsafe. It could not be said that she was under such a level of compulsion that her criminality or culpability was reduced to or below a point where it was not in the public interest for her to be prosecuted. Even on the law as it was in 2018, the court was unable to conclude that it would be an abuse for the applicant to be prosecuted. First of all, the gravity of the offence could not be minimised. Secondly, the applicant’s essential factual account had been tested before the jury, by way of her defence of duress (see paragraph 3 above), and rejected. Thirdly, while the court accepted that the applicant had been a victim of trafficking, that itself did not render her conviction unsafe and was of limited assistance in assessing the true levels of compulsion affecting her. Fourthly, the applicant’s account demonstrated that she had shown resilience in twice escaping from any compulsion. On a previous occasion, when she had been trafficked to the Bahamas, she had escaped to Miami but later returned to the United Kingdom for medical treatment and resumed contact with her traffickers. Furthermore, after her conviction she had assisted the authorities by giving evidence against gang members. It could not, therefore, be said that there were no reasonable alternatives available to her when she brought the drugs to the United Kingdom. In all of these circumstances, the court was unable to conclude, even arguably, that the applicants culpability was extinguished such that a prosecutor, properly applying the law as it was in 2018, would or might not have proceeded with a prosecution in the public interest.

14. Both the relevant domestic law and practice and the relevant international law and practice are set out in full in V.C.L. and A.N. v. the United Kingdom (cited above, §§ 66-107).

COMPLAINT

15. The applicant complained that the decision of the Court of Appeal to refuse her permission to appeal failed to afford her the protection required by Article 4 of the Convention.

THE LAW

16. The applicant complained that she had been denied the protection required by Article 4 of the Convention, which provides as follows:

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

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

17. At the outset, the Court notes that the applicant did not expressly invoke Article 4 of the Convention in her appeal to the Court of Appeal (see paragraph 7 above). Consequently, it has doubts about whether she has exhausted domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention (see, for example, Peacock v. the United Kingdom (dec.), no. 52335/12, § 38, 5 January 2016). However, in view of its conclusions at paragraph 25 below, it is not necessary for the Court to reach any firm conclusion on this issue.

18. The general principles concerning the prosecution of victims of trafficking are set out in V.C.L. and A.N. v. the United Kingdom (nos. 77587/12 and 74603/12, §§ 148-162, 16 February 2021).

19. In V.C.L. and A.N. v. the United Kingdom (cited above, §§ 174, 183 and 210) the Court found that the prosecution of two Vietnamese minors who had been discovered working as gardeners on cannabis farms had violated their rights under both Article 4 and Article 6 of the Convention. The Court considered that shortly after V.C.L. and A.N. were apprehended by the police, the authorities ought to have been aware of the existence of circumstances giving rise to a credible suspicion that they had been trafficked. Guidance issued by the Crown Prosecution Service (“the CPS”) had highlighted the “cultivation of cannabis plants” as an offence likely to be carried out by child victims of trafficking and the Child Exploitation and Online Protection Command had identified Vietnamese minors as a specific vulnerable group (see V.C.L. and A.N. v. the United Kingdom , cited above, §§ 117-119). Consequently, the Court accepted that shortly after V.C.L. and A.N. were discovered by the authorities a positive obligation had arisen under Article 4 of the Convention to take operational measures to protect them as potential victims of trafficking (ibid., § 120).

20. There is no evidence before the Court which touches on whether or not the present applicant, at the time she was apprehended, fell within a category of persons at particular risk of being trafficked. Furthermore, in contrast to the applicants in V.C.L. and A.N., in the case at hand the applicant was arrested, charged, tried and convicted before the Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (“the Anti-Trafficking Convention”) entered into force on 1 February 2008, and before it was ratified by and entered into force in the United Kingdom (on 17 December 2008 and 1 April 2009 respectively). It was only on 1 April 2009, to coincide with the coming into force of the Anti‑Trafficking Convention, that the United Kingdom Government created the National Referral Mechanism, through which the Competent Authorities conduct their assessments, in order to identify potential victims of modern slavery and ensure that they receive the appropriate support (ibid., § 75).

21. Nonetheless, the applicant does not complain about the failure to take operational measures to protect her in 2007. Rather, her complaints before the Court relate solely to the refusal by the Court of Appeal in 2018 – some eleven years later – to grant her leave to appeal against her conviction (see paragraph 8 above). However, even if the Court of Appeal at that time had been under a positive obligation under Article 4 of the Convention to ensure that the applicant, who had by then been recognised as a victim of trafficking (see paragraphs 5 and 6 above), was afforded protection commensurate with her status, for the reasons set out below the Court does not consider that on the facts of the present case that obligation would have been breached.

22. The Court has expressly recognised that no general prohibition on the prosecution of victims of trafficking can be construed from the Anti ‑ Trafficking Convention or any other international instrument (see V.C.L. and A.N. v. the United Kingdom , cited above, § 158). Nevertheless, 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. Therefore, the Court has held that as soon as the authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual suspected of having committed a criminal offence may have been trafficked or exploited, he or she should be assessed promptly – based on the criteria identified in the United Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”) and the Anti-Trafficking Convention – by individuals trained and qualified to deal with victims of trafficking. Any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it (ibid., §§ 159-162).

23. The applicant in the present case was charged, tried, convicted and sentenced without a trafficking assessment having first been made by a qualified person. Nevertheless, on appeal the Court of Appeal recognised that she had in fact been a victim of trafficking (see paragraphs 11 and 13 above). Consequently, it did not refuse the applicant leave to appeal because it disagreed with the finding that she was a victim of trafficking, but rather because it found that at the time of the offence she had not been under such a level of compulsion that her criminality or culpability was reduced to or below a point where it was not in the public interest for her to be prosecuted (see paragraph 13 above). In V.C.L. and A.N. , by contrast, both the CPS and the domestic courts had disagreed with the findings of the Competent Authority that the applicants were child victims of human trafficking without providing clear reasons for doing so which went to the core of the elements necessary to establish “trafficking” (ibid., §§ 45, 47, 170, 179 and 181).

24. The member States’ positive obligations under Article 4 of the Convention are to be construed in light of the Council of Europe’s Anti ‑ Trafficking Convention (ibid., § 150; see also Chowdury and Others v. Greece , no. 21884/15, § 104, 30 March 2017). Both Article 26 of the Anti-Trafficking Convention and Article 8 of the Anti-Trafficking Directive only provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to do so . In the present case the Court of Appeal clearly considered the extent to which the applicant had been compelled to commit the offence and concluded that the level of compulsion was not such as to extinguish her culpability (see paragraph 13 above). In the Court’s view, the Court of Appeal asked itself the correct question and its conclusion was one that it was open to it to make on the facts before it. While compulsion may not be necessary to bring a child within the scope of either Article 26 of the Anti-Trafficking Convention or Article 8 of the Anti-Trafficking Directive (see V.C.L. and A.N. v. the United Kingdom , cited above, § 158), the applicant in the present case was at all material times an adult.

25 . The Court does not, therefore, consider that in refusing to grant permission to appeal the Court of Appeal failed to fulfil any duty that may have arisen under Article 4 of the Convention to take operational measures to protect the applicant, as a victim of trafficking. The application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 December 2021.

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Andrea Tamietti Yonko Grozev Registrar President