Relationship between prohibition of forced labour and the prosecution of victims and potential victims of trafficking

In the case of V.C.L. and A.N. v. the United Kingdom (applications nos. 77587/12 and 74603/12, 16.02.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 4 (prohibition of forced labour) of the European Convention on Human Rights, and a violation of Article 6 § 1 (right to a fair trial). 

The case concerned two Vietnamese youths who police officers had discovered working on cannabis farms. They were arrested and charged with drugs-related offences, to which they pleaded guilty. Following their conviction they were detained in young offenders’ institutes. Following their conviction, both V.C.L. and A.N were recognised as victims of trafficking by the State authorities (competent authority) responsible for determining whether a person has been trafficked for the purpose of exploitation. However, the prosecution service having reviewed its decision to prosecute them, concluded that they were not victims of trafficking and the Court of Appeal found on the facts of each case that the decision to prosecute had been justified. 

This was the first time the Court had considered the relationship between Article 4 of the Convention and the prosecution of victims and potential victims of trafficking. It considered that the prosecution of victims or potential victims of trafficking would not necessarily breach Article 4 of the Convention. However, given the competent authority’s expertise in this area, the Court considered the prosecution had not given clear reasons consistent with the definition of trafficking for reaching a different conclusion to that of the competent authority.

However, having regard to the duty to take operational measures to protect victims of trafficking, the Court held that once the authorities had become aware of a credible suspicion that an individual had been trafficked, he or she should be assessed by a qualified person. Any decision to prosecute should follow such an assessment, and while the decision would not necessarily be binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different conclusion. Therefore, the Court found that the authorities had failed to take adequate operational measures to protect V.C.L. and A.N., both of whom had been potential victims of trafficking.

In the case of both V.C.L. and A.N., the Court found that despite the existence of credible suspicion that they had been trafficked, neither the police nor the prosecution service had referred them to a competent authority for assessment; although both cases were subsequently reviewed by the prosecution service, it disagreed with the conclusion of the competent authority without giving clear reasons capable of undermining the competent authority’s conclusions; and the Court of Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process. 

The Court therefore found that there had been a violation of Article 4 in both applicants’ cases. The Court found that, although the authorities had made some accommodations to the applicants after their guilty verdicts, the lack of any assessment of whether the applicants had been victims of trafficking may have prevented them from securing important evidence capable of helping their defence. Furthermore, the Court did not consider that this “unfairness” had been cured on appeal since – as already noted – the Court of Appeal’s review had been limited to a consideration of whether the prosecution had been an abuse of process, and it had relied on factors which did not appear to go to the core of the internationally accepted definition of trafficking. As such the proceedings had not been fair, leading to a violation of Article 6 § 1.

References from the official website of the European Court of Human Rights