Appeal judges reject legal challenge to ‘lack of statutory defence of coercion’ by alleged human trafficking victim accused of drugs offences

Quyen Van Phan argued that his prosecution was incompatible with the EU Human Trafficking Directive, the Charter of Fundamental Rights and the European Convention on Human Rights due to the lack of a statutory defence in the Human Trafficking and Exploitation (Scotland) Act 2015 to the effect that he had been trafficked into the UK and “compelled” to act as he did.

However, following a reference to the High Court of Justiciary Appeal Court a three-judge bench ruled that the Crown’s introduction of a “strong presumption” against prosecution of human trafficking victims after the 2015 Act was passed “meets the requirements” of the EU law.

Compatibility minute

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that in April 2016 the minuter was arrested and charged after found in a Glasgow flat which was being used for the purposes of cannabis cultivation.

But he claimed he had been trafficked from Vietnam to Scotland via Russia and France and that he had been locked in the property and asked to look after the cannabis plants by “Westerners” who beat him up when he asked to leave.

He was interviewed by the police as a potential victim of human trafficking and subsequently by the Home Office, which, given certain inconsistencies in his account, found that there was no reasonable basis for concluding that he was the victim of trafficking and, in any event, the necessary element of compulsion to commit the offence was not present.

The minuter was accordingly placed on petition and later indicted on charges of producing cannabis and concern in the supplying of cannabis, contrary respectively to sections 4(2)(a) and 4(3)(b) of the Misuse of Drugs Act 1971, and theft of electricity.

He then lodged a compatibility minute, which maintained that his continued prosecution was incompatible with the EU Directive because he had “no access” to a defence that he had been trafficked into the UK and compelled to commit the offences.

‘Oppression’

The minute sought: a declarator that the 2015 Act was incompatible with EU law because of the absence of such a defence; an order deserting the proceedings because of the absence of the defence on the ground of “oppression”; or for directions to the jury on coercion in a manner which was compatible with the Directive; or a reference to the High Court.

A first diet and trial diet had been allocated for August 2016, and thereafter the case called on 11 occasions in front of 11 different sheriffs before one of those sheriffs decided to take a decision to remit the matter to the High Court.

The sheriff determined that it would not be appropriate to desert simpliciter, since it could not be said that a fair trial was impossible; that the Crown’s decision to prosecute, having regard to the guidelines, had not been unfair; and that the minuter’s right to a fair trial under Article 6 ECHR had not been breached as he was free to lead evidence in support of his position that he had been trafficked.

However, the sheriff considered that the issue of punishment gave rise to real difficulty since evidence that the minuter was a victim of trafficking was not a recognised defence in Scotland, as it was elsewhere in the UK. Even if the jury accepted his account of trafficking, he would still face conviction and sentence unless his position fell within an existing category of special or statutory defence, but the defence of coercion required the minuter to establish that he had acted under an immediate danger of death or serious bodily harm, which would not be met if he had been acting under duress of a serious, but not immediate, kind.

‘Right to a fair hearing’

Before the appeal court it was argued that the Directive gave the minuter a right to have the question, of whether he was a victim and had been compelled to commit the offence, determined at “a fair and public hearing by an independent and impartial tribunal” and the fact that there was no statutory defence provided by the 2015 Act meant that victims of trafficking were less well protected in Scotland than in the rest of the UK.

It was also submitted that the defence of coercion did not provide sufficient protection because, in many cases at least, there was no immediate danger of death or serious bodily harm or an inability to resist the violence.

Further, it was contended that a proof in mitigation was not an effective remedy as if an accused person had a substantive defence, or there were issues related to other fundamental rights, these would be lost if a proof in mitigation was the only method by which protection could be secured. And mitigation could not be advanced where it was inconsistent with a plea of guilty.

However, the appeal judges held that the Scottish system did provide the necessary remedies.

‘Effective mechanisms’

Delivering the opinion of the court the Lord Justice General said: “An option not to prosecute a person for a particular crime has always been available in Scotland; it being a matter for the respondent to decide whether to do so in the public interest. Whether a person was a victim of trafficking is something which might have been taken into account in deciding whether to prosecute him for a particular crime.

“Nevertheless, increasing recognition of the problem of trafficking and, of course, the terms of the Directive and its international antecedents, prompted the passing of section 8 of the Human Trafficking and Exploitation (Scotland) Act 2015. This required the respondent to publish instructions on that matter, specific to those who appear to be victims of human trafficking.

“The respondent has done this by creating a strong presumption against the prosecution of such persons where there is credible and reliable information to support the fact that the person has been compelled to carry out the offence as a direct result of trafficking. The existence of such a discretion meets the requirements of Article 8 of the Directive in so far as it requires national authorities to be ‘entitled not to prosecute’ victims of trafficking who have been compelled to commit a crime.”

Lord Carloway continued: “First, there is vested in the respondent a general discretion not to prosecute. This is transmitted to prosecutors along with a specific instruction which provides a strong presumption against prosecution where a person has been compelled to carry out the offence as a direct effect of trafficking. Although the court may give due deference to the respondent in taking a decision to prosecute, that decision could be reviewed by the court where an accused advances a plea in bar of trial on the grounds of oppression.

“Secondly, the common law in relation to coercion is available if the circumstances reveal that an accused has been coerced into carrying out the cultivation of cannabis under threat of violence… It will always be a matter of facts and circumstances whether a person was truly coerced (or compelled) to commit a crime by virtue of genuinely anticipated and unavoidable violence.”

“Thirdly,” he added, “even if the circumstances do not amount to the defence of coercion, they may nevertheless provide powerful mitigation…The fact that the jury have not been asked to rule on the fact of trafficking or its effect, other than in the context of coercion, has no bearing on the sheriff’s ability to assess that fact and its bearing.

“The sheriff’s concerns in this area are misplaced and the contention that a proof in mitigation is not an effective mechanism is rejected…What is clear is that the sheriff has a wide discretion in deciding what, if any, penalty should be imposed where the person convicted has been a victim of trafficking and this has encouraged him to commit the offence, albeit that the common law defence of coercion has not been made out.”