Defending victims of trafficking in criminal proceedings
Defending victims of trafficking in criminal proceedings

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Defending victims of trafficking in criminal proceedings
  • Treaty obligations to protect the rights of victims of trafficking
  • General principles
  • Statutory defences for victims of trafficking who commit offences—MSA 2015, s 45
  • Burden and standard of proof of an MSA 2015, s 45 defence
  • Defence of duress in cases where the defendant has been trafficked
  • Procedure for review where the defendant may be a victim of trafficking
  • Referrals by the prosecution
  • Trafficking victims—becoming a victim after prosecution proceedings have commenced
  • Victims of trafficking claims made post-conviction
  • More...

Treaty obligations to protect the rights of victims of trafficking

There has been a sea-change in attitude towards prosecuting victims of trafficking since 2000, brought about due to obligations created at an international level.

Since the 4 April 2009 the UK has been bound by the positive obligations imposed by the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (CETS 197), to prevent and combat trafficking and to protect the rights of victims. CETS 197, Article 4 describes trafficking and the main provisions require that it be criminalised, see Practice Note: Human trafficking offences.

CETS 197, Article 26 imposes an obligation on states to consider whether other criminal infractions committed by victims of human trafficking should be prosecuted and makes provision for non-punishment where putative defendants are victims themselves. This obligation is intended to combat the problems associated with adults and children being trafficked for the purpose of committing criminal offences. The most common of which are:

  1. prostitution offences under sections 52 and 53 of the Sexual Offences Act 2003

  2. cultivation of cannabis plants under section 6 of the Misuse of Drugs Act 1971

  3. theft under section 1 of the Theft Act 1968

The court in R v N, R v E has found that CETS 197, Article 26 is concerned with the sentencing decision not the decision to prosecute and that the

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