1. University of Warwick
Devika Tiwary
Law Reform Essay 2013
1
Have they really wronged? - Making Provisions for non-punishment for the
victims of Human Trafficking
Introduction
With the recent passing of the deadline to transpose “European Directive on Preventing and
combating trafficking human beings and protecting its victims”1
and the alarming rise in
identified victims, the United Kingdom is under increasing pressure to execute the necessary
reforms in its standing Anti-Trafficking Legislation. The home secretary, Theresa May
recognized this at the Conservative party conference 2013 where she announced the prospective
introduction of the “Modern Slavery” bill in the current parliament session. The bill, still in its
initial stages, appears to be one of the most forward looking steps that legal players have taken in
battling human trafficking. The current piecemeal legislative approach to human trafficking will
be replaced by a consolidated Anti-trafficking legislation. The bill will address the lack of
leadership in combating human trafficking, by making provisions for the office of an Anti-
trafficking commissioner. Stringent restrictions will aim at doing away with the prevalent
practice of trafficking offenders returning to the trade post their sentence.2
At a time when the
number of victims seems to be increasing and the crime is becoming perplexing and harder to
detect, these reforms appear to be extremely credible and indispensable.
1
Council Directive 2011/36/EU European Directive on Preventing and combating trafficking Human Beings and protecting its
victims [2011] L 101/1 (Human Trafficking Directive)
2
Andrew Sparrow, “Modern Slavery Bill to tighten law in Human Trafficking” The Guardian(London, 25th
August 2013) <
http://www.theguardian.com/law/2013/aug/25/modern-slavery-bill-human-trafficking.> Accessed on 1st
Octobe2013.

2. University of Warwick
Devika Tiwary
Law Reform Essay 2013
2
The existing strategy of combating human trafficking through three different legislations-the
Sexual Offences Act 20033
, the Asylum and Immigration Act 20044
and the Coroners and
Justice Act 20095
is confusing and insufficient. The absence of a single authority to look into the
dynamics of this complex issue is a major setback that has been recognized even in an EU
directive6
. And the feeble numbers of prosecutions that do take place prove fruitless if the
convicts return to their shameful habits. Thus, an Anti-trafficking bill that addresses these issues
will strengthen UK’s stance against slavery’s modern day avatar, human trafficking.
Furthermore, their adaption is required for the proper enforcement of the EU Directive7
, an
obligation United Kingdom cannot shy away from.
However, the bill fails to address one other drawback of our prevailing legislation- the failure to
prevent the prosecution and consequent conviction of trafficking victims for crimes
performed by them in their state of bondage. At the moment, this issue is addressed through
the Policy guidelines published by the Crown Prosecution Service that advises prosecutors to be
pro active when dealing with suspects who are seen as prospective victims of trafficking.8
These
guidelines have proved to be unsatisfactory and only recently, did the Court of criminal appeal
give a strikingly harsh decision for the prosecution of two trafficking victims found guilty of
working in cannabis farm.9
In addition to being morally incorrect and unjust, wrongful
prosecution of victims means that traffickers often get away without facing the consequences of
3
Sexual Offences Act 2003
4
Asylum and Immigration Act 2004
5
Coroners and Justice Act 2009
6
Human Trafficking Directive (n1)
7
Human Trafficking Directive (n 1)
8
Crown Prosecution Service, “CPS Policy for prosecuting cases of human trafficking” (CPS, May 2011) , <
http://www.cps.gov.uk/publications/docs/policy_for_prosecuting_cases_of_human_trafficking.pdf> Accessed on 3rd
October
2013
9
R v N, R v LE, [2012] EWCA Crim 189

3. University of Warwick
Devika Tiwary
Law Reform Essay 2013
3
their atrocious crimes.10
The paragraphs that follow will further elaborate on the consequences of
prosecution of victims, its adverse impact on UK’s anti trafficking measures and will thus make
a case for the incorporation of a provision on non-punishment for trafficking victims in the
upcoming Modern Slavery Bill.
Why does UK need a non punishment provision with respect to trafficking victims?
While human trafficking is a complex crime with a rather intricate detection and prosecution
process, wrongs such as prostitution, theft and possession of illegal documents have a more
straightforward character. They are easily detected and are governed by precise legislations.
These crimes are the veil under which human trafficking hides and it is this blanket that
traffickers take advantage of at the cost of the innocent victims.
Article 26 of the Council of European Convention on action against trafficking in human
beings11
recognizes the need to protect victims from prosecution and Article 8 of the European
Directive further builds on this obligation binding the member states.12
The recital to the
directive explains the rationale behind Article 8 -“The aim of such protection is to safeguard the
human rights of victims, to avoid further victimization and to encourage them to act as witnesses
10
OSCE, “Policy and legislative recommendations towards the effective implementation of the non-punishment provision with
regard to victims of trafficking” (OSCE, 2013) < http://www.osce.org/cthb/101002> Accessed on 3rd
October 2013
11
Council Convention CETS. No 197 of 2005 of European Convention on action against trafficking in human beings legislation
type [2005] ( Human Trafficking Convention)
12
Human Trafficking Directive ( n 1)

4. University of Warwick
Devika Tiwary
Law Reform Essay 2013
4
in criminal proceedings against the perpetrators.”13
Prosecution of victims for crimes committed
as a consequence of their trafficked situation has an adverse effect on our fight against human
trafficking. Victims are sceptical about approaching relevant authorities for they fear detention
and consequent conviction. Hostility against legal workers makes victims unwilling to corporate
with them in identifying and arresting traffickers.14
Furthermore, with victims prosecuted and
convicted for crimes such as prostitution, the case file is closed and forgotten. The trafficker, the
mastermind behind the entire situation escapes and continues to exploit other innocent victims.
Thus, the purpose of removing traffickers from the international society is not achieved. This is a
matter of grave injustice and is against the wellbeing of the public at large. There is an urgent
need to regulate the prevalent practice to serve more humanitarian ends and eradicate human
trafficking.
Regina v O15
illustrated how protecting trafficking victims from prosecution is an extremely
challenging task. In the absence of relevant training and guidelines, the appellant, a human
trafficking victim was prosecuted and consequently convicted for being in possession of a false
identity card. The Court of appeal reversed the decision and urged prosecutors to be more
vigilant in identifying suspects as prospective victims of human trafficking. In response to the
Directive’s recommendation to “take the necessary measures to ensure that competent national
13
UNHR, UNHCR, UNICEF, UNODC, UN Women, ILO “HUMAN TRAFFICKING Joint UN Commentary on the EU
Directive – A Human Rights-Based Approach” (UNHR and others, November 2011) p 35 <
http://www.refworld.org/pdfid/4edcbf932.pdf> Accessed 1st
October 2013
14
The Centre for Social Justice, “It happens here- Equipping the United Kingdom to fight modern Slavery” (Centre for Social
Justice, UK, March 2013) <
http://www.centreforsocialjustice.org.uk/UserStorage/pdf/Pdf%20reports/CSJ_Slavery_Full_Report_WEB(5).pdf> Accessed on
2nd
October 2013
15
[2008] EWCA Crim 2835

5. University of Warwick
Devika Tiwary
Law Reform Essay 2013
5
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”16
and to make
the Judgment in Regina v O17
concrete, the CPS set guidelines18
for prosecutors advising them to
stop prosecution of prospective victims of human trafficking. They have been asked to
coordinate with the National referral mechanism in identifying victims and consequently
bringing their prosecution to end. An accurate and commendable proposition on paper, it is not
that easy to effectively put it in practice. Only, recently in R v N and R v LE19
, NRM-recognized
victims of child trafficking were prosecuted and convicted for working in Cannabis Farms. This
much criticized decision illustrates that the CPS guidelines are not sufficient to meet the
obligations of the European Convention20
and European Directive.21
To begin with, these are merely guidelines that have no binding effect on prosecutors. It only
advises them; it creates no legal obligation on the prosecutors. The document that educates
prosecutors on Human Trafficking does not do justice to the complexities of the crime. In R v N,
and R v LE22
, a 17 year old with a functioning mobile phone was not considered a potential
victim. Guided by their limited knowledge on the subject, prosecutors failed to realize that while
defining human trafficking, “coercion” also includes a more deep rooted and invisible
psychological intimidation; ‘A lot of people think trafficking is being snatched, tied up and put in
16
Human Trafficking Directive, Art. 8 ( n 1)
17
Regina (n 15)
18
CPS (n 8)
19
N and LE (n 9)
20
Human Trafficking Convention (n 11)
21
Human Trafficking Directive (n 1)
22
N and LE (n 9)

6. University of Warwick
Devika Tiwary
Law Reform Essay 2013
6
a boot and locked in a room – there is an element of freedom which I think they struggle to
understand. But what about being ruled by fear? Fear of ending up in a shallow grave.’23
The
guideline is vague at places. It sets out that, for prosecution to stop, the crime committed should
be a direct consequence of the trafficking but is silent on defining what is direct consequence.
Prosecutors who are not experts in this field often make incorrect decisions. In R v M(L) and
others24
, a victim of trafficking was prosecuted for a crime was committed months after she had
been freed from her trafficker. The sensitive nature of the situation and the aftermath of her
trafficked position were not given due consideration in this decision. Although prosecutors are to
work with the NRM to identify potential victims, the latter’s position is only limited to that of an
advisory body. In R v LE25
, despite NRM recognizing the suspect as a victim, prosecutors
decided otherwise. Thus, it is evident that the guidelines are failing in effectively regulating the
prosecution of trafficking victims.
What makes the prevalent situation worse is the Judge’s confirming this wrongful prosecution by
convicting the victim. While guidelines exist for prosecutors, judges are trusted to use their own
discretion to prevent conviction of the trafficking victims. More often than not, innocent victims
find themselves convicted for a crime they did by compulsion. Judges do attempt to work under
the framework of the European Convention26
and the Directive27
, but may interpret it in a
manner that might go against the interest of the victim and public at large. In R v N28
, the court
argued that the directive was more “inclined towards sentencing and not prosecuting” thus
23
The Centre for Social Justice p87 (n 14)
24
R v M(L) and others, [2010] EWCA Crim 2327
25
N and LE (n 9)
26
Human Trafficking Convention (n 11)
27
Human Trafficking Directive (n 1)
28
N and LE (n 9)

7. University of Warwick
Devika Tiwary
Law Reform Essay 2013
7
reducing the sentence of the victim. The court appears to have misunderstood two fundamental
points concerning the Directive- firstly, it is clear by the language that Article 8 of the Directive
does cover both “non prosecution and non application of Penalties” 29
and secondly, reducing
the sentence does not serve the purpose the directive aspires to achieve. Furthermore, the gravity
of the situation requires for a protection more concrete and trafficking- specific than the common
law defense of duress that the court usually relies on.
Justice Huges summed up UK’s approach to non punishment of human trafficking victims under
three distinct approaches- common law defenses of duress and necessity, guidelines for
prosecutors and the court’s supreme authority to put a stay on any wrongful prosecution.30
But with the judgment in R v N and R v LE31
now being reconsidered by the European Court of
Human Rights, it is obvious that UK’s efforts are lacking, and there is a need to introduce
reforms that ensure better enforcement of the principle of non-punishment.
Proposed legislative reforms:
The practice of imposing legislative acts to ensure non-punishment of human trafficking victims
is not an untried suggestion. In Rantsev v Cyprus and Russia32
, the ECHR recognized an
29
Human Trafficking Directive Art 8(n 1)
30
M(L) (n 24)
31
N and LE (n 9)
32
Rantsev v Cyprus and Russia App no. 25965/04 (ECtHR, 7th
January 2010)

8. University of Warwick
Devika Tiwary
Law Reform Essay 2013
8
obligation on states to impose relevant legislative measures to protect the rights of victims of
human trafficking.
UNODC mentions two approaches to incorporating the principle of non-punishment of victims.
The first is the duress model, where a person is not held liable for a crime he commits under
undue force. In the causation model, a person is not guilty for a crime he commits as a direct
consequence of his trafficked situation.33
The two models are alike. They are merely different
approaches taken to meet the same ends- non conviction of human trafficking victims. United
Kingdom, works in a model which is inclined to the duress model. The Code for Crown
Prosecutors in England and Wales, awards Prosecutors with a significant degree of discretion.
The UNODC advises legal systems with prosecutorial discretion to incorporate non punishment
of victims through guidelines for prosecutors.34
And this is what the CPS has attempted to do.
However, as discussed in the previous section, these guidelines are lacking in substance.
The current system needs strengthening on two fronts. First, CPS guidelines35
should be revised
to read with greater precision. Prosecutors need to be told what exactly is meant by “coercion,
force and other technical terms” relevant to human trafficking. But revision of guidelines alone is
insufficient to meet the needs of the hour. Legislative provision will have to be incorporated in
the forthcoming Modern slavery bill in order to more stringently impose the practice of non -
punishment in the UK system.
33
Working Group on Trafficking in Person, “Non-punishment and non-prosecution of victims of trafficking in persons:
administrative and judicial approaches to offences committed in the process of such trafficking” (UNODC, Vienna, 27-29
January 2010) <http://www.unodc.org/documents/treaties/organized_crime/2010_CTOC_COP_WG4/WG4_2010_4_E.pdf>
Accessed on 4th
October 2013
34
UNODC and UN.GIFT, Model Law Against Trafficking in Persons” ( UNODC, Vienna, 2009) <
http://www.unodc.org/documents/human-trafficking/Model_Law_against_TIP.pdf> Accessed on 4th
October 2013
35
CPS (n 8)

9. University of Warwick
Devika Tiwary
Law Reform Essay 2013
9
A provision on mandatory training of frontline legal officers such as prosecutors should be made
in the bill. Guidelines will continue to be ineffective unless prosecutors are given practical
training and understanding on the matter. At the moment, training is optional and is an NGO
initiative.36
A legislative provision for training will ensure it is carried out in a more regulated
framework under the guidance of the prospective Anti Trafficking Commissioner. Equipping
prosecutors with the adequate knowledge on human trafficking, coupled with the guidelines of
the CPS will make them more confident in recognizing signs of human trafficking when
prosecuting suspects for crimes such as prostitution, working on Cannabis Farms etc. In addition
to making the Prosecutors self sufficient in detecting human trafficking, the Modern Slavery Bill
should strengthen the authority of the National Referral Mechanism. A commendable initiative,
the National Referral Mechanism is wanting in increased power. Despite the NRM making a
conclusive grounds decision that a suspect is a victim of trafficking, Prosecutors have the
authority to ignore the NRM suggestion and continue prosecuting the victim. In order to avoid
situations such as that in R v LE37
in the future, NRM conclusive ground decisions should be
made binding on Prosecutors through a legislative provision in the Modern Slavery Bill.
In addition to improving UK’s existing duress model approach to providing for non punishment
of victims in the legal system, legislative provisions typical to the causation model should also be
considered. The guidelines format of the duress model is limited to prosecutors. An introduction
of a legislative provision of a causation approach will provide for a check on the decisions of
36
The Centre for Social Justice (n 14)
37
N and LE (n 9)

10. University of Warwick
Devika Tiwary
Law Reform Essay 2013
10
judges, for the recent case of R v N and R v Le38
demonstrated even their shortcomings in
recognizing victims of human trafficking. One of the most concise and effective legislative
provision of the causation model is that in place in the United States of America. The Victims of
Trafficking and Violence Protection Act of 2000 provides that “Penalties for the crime of
unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery,
involuntary servitude, or forced labor do “not apply to the conduct of a person who is or has been
a victim of a severe form of trafficking in persons, […] if that conduct is caused by, or incident
to, that trafficking.”39
A similar legislative provision in the Modern Slavery Bill will further
strengthen the UK legal system in enforcing non punishment of trafficking victims and avoiding
scenarios such as that in R v LE.40
The common law defense of duress is not enough to protect
victims and with a legislative obligation in place, Judges are more likely to give judgments in
favor of trafficking victims.
A combination of the duress and causation model to equip both prosecutors and judges will be
effective in protecting victim rights and preventing their unjust conviction.
Conclusion:
Prosecution of trafficking victims is one of the gravest forms of injustice committed in our
society. In the words of an anonymous police officer, ‘So what do we do when we find them?
38
N and LE (n 9)
39
Victims of Trafficking and Violence Protection Act of 2000 (USA)
40
N and LE (n 9)

11. University of Warwick
Devika Tiwary
Law Reform Essay 2013
11
We charge them; we nick them. Is that the best victim care?’41
Innocent victims spend time
behind bars while traffickers reap the benefits of their wrong doings. To protect the innocent
victims and ensure that the traffickers pay the prize of their horrifying habit, non punishment of
trafficking victims should be introduced as a formal, concrete legislation. Training of prosecutors
and relevant legal workers coupled with a precise and effective legislation will help meet the
many international obligations that exist and consequently protect the trafficking victims. The
upcoming Modern Slavery Bill which is currently lacking in provisions for victim in its draft
form will be more effective in battling human trafficking if the suggested reforms are
incorporated into it. The English legal system should give the atrocious crime human trafficking
precedence over offences such as prostitution, theft and possession of illegal documents, for only
then can we eradicate trafficking from its roots and safeguard the interests of the victims.
Word count: 2996
41
The Centre for Social Justice p 85 (n 14)