88 UNODC Issue Paper, Abuse of a Position of Vulnerability, p. 13.
89 UNODC Issue Paper, Abuse of a Position of Vulnerability, p. 13.
90 Palermo Protocol, Article 3(b).
91 For instance, in CE No. 350661, France: Conseil d’Etat, 25 July 2013; or Décision No. 13003859, France: Cour nationale du droit d’asile, 12 July 2013.
92 International Criminal Court Rules of Procedure and Evidence, Rule 70 (“Principles of evidence in cases of sexual violence”).
17
Prosecution of cases of human trafficking in a common law system
Pam Bowen
English law
English law consists of common law and statutes. Common law is in effect legal precedent, made by judges sitting in court. These judicial precedents are binding on future cases, not simply persuasive, made by judges delivering written judgments about the cases before them.
Where statutes are concerned, it is sometimes necessary to refer to Hansard, which records Parliamentary debate, to determine what Parliament intended before the statute became law, and how the statute should be used or interpreted. Common law also provides interpretations of the statutory provisions but, unlike statute, the common law is constantly changing.
Role of investigator and prosecutor
The police and other law enforcement agencies are responsible for the investigation of any alleged crime. This includes the decision to start, continue, or stop an investigation; the scope of the investigation (how widely it goes, whether they investigate those involved earlier in the process at source – which may be out of the jurisdiction); and how to deploy their resources. The police are also responsible for determining whether they use covert techniques to obtain evidence or intelligence, and for authorising the decision to do so. However, in more serious or complex cases, involving serious and organised crime such as human trafficking, the police will nearly always seek early investigative advice from prosecutors.
The decision to prosecute, however, is for prosecutors and, in all but minor offences, prosecutors decide on whether to charge someone with a criminal offence, and what that offence (or offences) should be. Every case referred to prosecutors by the police is carefully considered and reviewed. This review is a continuing process and will take account of any changes as the case develops. For example, further evidence obtained by the police may influence a change of charges, or lead to the case being terminated if the new evidence undermines the case. Only when an investigation is complete, and all available evidence has been reviewed, can the decision to prosecute be taken.
In deciding whether to prosecute, prosecutors are required to review each case in accordance with a two-stage test which is set out in the Code for Crown Prosecutors (the Code). Prosecutors must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge (the evidential stage). This means that a judge, or jury, or bench of magistrates, is more likely than not to convict the defendant of the alleged offence. If the case does pass the evidential stage, prosecutors must then go on to decide if a prosecution is needed in the public interest (the public interest stage).
Prosecutors have discretion to not prosecute when considering whether it is in the public interest to bring a prosecution. For example, bringing a prosecution may have an adverse effect on the victim’s physical or mental health; and the prosecutor will need to balance the possible consequences for the victim whilst bearing in mind how serious the alleged offence is.
Duty to investigate
In common law, there is no tort of ‘negligent police investigation’. However, rights under the ECHR, such as the right to life, the right to live free of torture, inhumane, and degrading treatment, the prohibition of slavery and servitude, and the right to liberty, impose an obligation on the State to investigate suspected breaches of these rights and to provide a remedy. The type of crime associated with human trafficking, such as serious violent and sexual crime, as well as crimes of economic exploitation and slavery, will almost always constitute a breach of a human right as well as a breach of criminal law. That means, as the courts have now had to recognise, that police and prosecutors are under a positive duty to investigate and prosecute cases of human trafficking. It also means that it is possible to challenge them when they fail to discharge that duty. There is well established ECHR and domestic case law to confirm this.1
Pre-charge stage and evidence gathering
In more serious or complex cases, such as human trafficking, the police will nearly always seek early investigative advice from prosecutors. This is to help build strong cases to put before the court; however, prosecutors cannot direct the police in their investigation, nor direct how they use their resources. Early investigative advice will include identifying avenues to investigate, evidence to corroborate the testimony of the victim, and prosecution strategies – for example, who should be treated as victims and who should be prosecuted. In some cases, that may mean using potential suspects who have played a more minor role in the offences as witnesses against more serious criminals.
The prosecutor will also advise on the nature of the charges to be considered, for example, whether a charge of conspiracy to traffic may be more appropriate than a substantive charge of trafficking for exploitation in cases involving a large number of suspects and victims. This arises more frequently in cases of trafficking for forced labour where the suspects have taken different roles but it is difficult to establish that one person had controlled a single victim. Here, it may be easier to prove an agreement between the suspects to carry out the offence. In addition to the offences of human trafficking, prosecutors will identify all other criminal offences that might be disclosed, which will reflect the full criminality of the case and give the court sufficient sentencing powers. Often victims are also subjected to assaults, rape or other serious sexual offences, threats to kill, false imprisonment, or kidnapping. Offences of money laundering, benefit fraud, or other fraud offences might also be disclosed. For all of these offences the prosecutor will advise the police on evidential requirements.
In nearly all cases of human trafficking, the testimony of the victim is required (see discussion on ‘The role of victims and witnesses in criminal proceedings’ below). The only circumstances where the victim’s testimony is not required are when the police have started a pro-active investigation and evidence is obtained which fully proves the offence without the victim’s evidence.
To reduce the burden on the victim in proving the case, it is vital that other evidence that will corroborate the victim’s account and prove the offence is obtained. This will include the use of experts – such as cultural experts, medical professionals, or experts able to provide accounts of the conditions in the victim’s country. Other evidence of importance includes mobile phone downloads, cell site analysis, and downloads from personal computers belonging to the suspect, forensic evidence to link suspects to victims, evidence from closed-circuit television (CCTV), and police surveillance evidence. In cases where victims are living in poor conditions, video recorded evidence or photographs of the premises are helpful. The seizure of material from a crime scene – the place where victims are being exploited – is important evidence: such as money, personal computers, vehicles, mobile phones belonging to suspects and victims, paperwork, and identity documents.
Evidence of bad character, for suspects as well as victims and witnesses, is also admissible – this is evidence of previous criminal offences, which may have to be obtained from overseas where relevant. The key test of whether bad character evidence is admissible is relevance. If the evidence goes to an issue in the case and tends to prove one of the elements of the offence, then it is relevant and admissible. For example, it may be relevant to whether the suspect has a propensity to be untruthful.
Prosecutors will also advise on the admissibility of evidence, particularly evidence which may have been obtained outside the jurisdiction. Whilst the decision to use
covert techniques to obtain evidence rests with the police, not all evidence gathered in this way will be admissible in a court of law. For example, whilst the use of intercept evidence obtained within the UK cannot be used as primary evidence in a case, it can be used as a means of developing intelligence to inform further investigation.2 However, if the evidence has been obtained outside the UK and not initiated by UK law enforcement, it may be possible to admit this as evidence in a case.3 Prosecutors will work closely with the police and advise accordingly.
Prosecutors will also work closely with financial investigators to pursue the financial assets of traffickers to support the criminal case, as well as in proceedings for proceeds of crime and asset recovery. Prosecutors will apply for orders to restrain and confiscate any assets and property traced by investigators.
International co-operation and obtaining evidence from overseas
International co-operation in investigating and prosecuting cases of human trafficking is essential, whether through the use of mutual legal assistance (MLA) or through joint investigation teams (JITs). Generally, MLA can be used to request evidence from a witness overseas, to obtain banking evidence, computer evidence, or criminal records, or for the restraint and confiscation of proceeds of crime. It is also used when a live television link is required to enable a witness to give evidence from that country to a court in England and Wales, or to request that ‘Family Liaison Officers’ be permitted to visit a victim or witness abroad. It is the prosecutor’s decision whether or not to issue a letter of request (LOR), and the prosecutor is responsible for its content and drafting. The LOR will be informed by information from the investigator. However, law enforcement agencies can also make police-to-police enquiries to obtain further information during the investigation, which does not require formal MLA.
If the investigation or proceedings are cross-border in nature, then it is possible that another State would also have jurisdiction to try an offence. This will generally be decided through prosecutorial discussion, and be based on whichever jurisdiction the crime took place in, where the suspect(s) was arrested, or where the victims are. Where a decision cannot be reached, it is referred by the prosecutor to the European Judicial Network or to Eurojust.
Joint Investigation Teams (JITs)
JITs are the most effective way of investigating and prosecuting an organised crime network involved in trafficking victims across EU Member States. JITs can be set up between the 28 Member States (plus Norway and Switzerland). But they can also be set up with and between countries outside the EU, provided that a legal basis for the creation of such a JIT exists between the countries involved, such as an international legal instrument, a bilateral or multilateral agreement, or national legislation. The team will generally comprise prosecutors and law enforcement agencies from two or more jurisdictions jointly investigating the offence and sharing information and evidence. The UN Convention on Transnational Organised Crime, 2000, serves as a legal basis for mutual legal assistance in general, and for joint investigations. In particular, Article 19 promotes co-operation through States establishing joint investigative bodies.
Where used, JITs help to ensure that the best evidence is obtained in the participating States; that duplication of work is avoided; that tactical decisions are made jointly, ensuring that neither Member State’s investigation compromises that of the other State; and that jurisdictional issues are addressed early on and appropriate decisions are made regarding the trial venue. The need for sending multiple letters of request is also avoided.
The roles of the investigator and prosecutor in the UK differ from those in most EU States, as the prosecutor does not have authority to decide to start or continue the investigation, nor as to its scope or direction. However, the UK prosecutor will work closely with the police, but will ensure that the JIT Agreement reflects the different roles from those of the other Member States.
Charging and service of the Prosecution’s case
The prosecutor will decide on and authorise the charges with which the suspect will be charged, while the police will formally caution and charge the suspect with the offences. For some offences, the consent of the Attorney General is required. For example, where a charge of conspiracy to commit human trafficking is being considered in circumstances where the conspiracy takes place within the UK but the substantive offence, the trafficking, is to take place outside the UK, the prosecutor must obtain the consent of the Attorney General to the prosecution.
Once the defendant is charged, he must appear before the magistrates’ court, usually the following morning. At the hearing, the magistrates will consider whether the defendant should be remanded in custody or granted bail. The prosecutor will outline any reasons for remand in custody, or suggest bail conditions, if appropriate. In most cases of trafficking, the defendants will be remanded in custody for one or more of the following reasons: the seriousness of the charges, which attract more significant terms of imprisonment; if they are foreign nationals they may be likely to abscond; any history of previous offending (including in other jurisdictions); the potential to interfere with witnesses; and evidence of violence or threats to victims or witnesses. The magistrates will then send the case to the Crown Court, with a fixed date and time for a preliminary hearing.
The police should be requested to prepare a full file of evidence if they have not already begun to do so. However, in cases of human trafficking where the prosecutor has provided early investigative advice, it is likely that evidence gathering will have already started. The police will also be requested to provide any further material for disclosure at this stage. The more that can be revealed to the defence at an early stage, the more this will facilitate the defendant and their legal representative to consider the evidence for the preliminary hearing and possibly indicate an early guilty plea.
At the preliminary Crown Court hearing, the judge may ascertain the likely intention of the defendant to plead guilty. If an indication of a guilty plea is given, the judge may order the preparation of an indictment (the formal written accusation against the defendants outlining all charges against them) and order the defendant to be arraigned. Alternatively, the judge may ask the Prosecution to serve a prima facie case in an agreed period, usually as short as possible, and order the preparation of pre-sentence reports. If there is no indication of an early guilty plea, the purpose of the preliminary hearing is to deal with any outstanding custody or bail issues, to set a timetable for the service of the Prosecution’s case, and to set the date of the Plea and Case Management Hearing.
The service of the Prosecution’s case is governed by the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005, which sets out the procedure for service of prosecution evidence in the case of a person sent for trial. The evidence must be served on the defendant, and to the relevant Crown Court, no later than 70 days after the date on which the person was sent for trial or, if the defendant is in custody, no later than 50 days after the date on which the person was sent for trial. The defendant, too, is required to serve a defence statement, as well as details of any witnesses it is intended to call. This helps to identify the issues in dispute.
Usually, the evidence will be in the form of witness statements, and may be admitted if adduced by the prosecutor and served on the other parties. Any first-hand hearsay evidence, which might be admissible, must also be served.
The extent of the Prosecution’s obligation to call witnesses
The Crown must ordinarily call those witnesses whose evidence was tendered at committal proceedings. Although there is a discretion not to call such a witness, it must nevertheless be exercised properly, and not so as to, for example, surprise the Defence. In cases of human trafficking, unless there has been a pro-active investigation which does not rely on the evidence of victims, it is most likely that the victim(s) will be required to prove the case.
Care needs to be taken, therefore, as to which witnesses should be included in the prosecution fil
e. A case can, potentially, be considerably weakened by the inclusion of a witness who is not credible, and it is best to avoid causing possible difficulties for the Prosecution’s advocate at trial.
Evidence can also take the form of video-recorded evidence of the victim or witnesses. The Defence has 14 days after the evidence has been served to inform the Prosecution and the Crown Court in writing which witnesses they require to attend and give oral evidence. In cases where a victim has provided video-recorded evidence but is not able to attend to give evidence because, for example, they have gone missing or are fearful of the defendants, the Prosecution can apply under ‘hearsay’ provisions for the video evidence to be admitted as evidence if there is sufficient other evidence to support the prosecution. It will be a matter for the court whether to allow this.
Disclosure
The English legal system requires proper and fair disclosure of all relevant material to the Defence. In the interests of a fair trial, all material held by the Prosecution that either weakens its case or strengthens that of the Defence, falls to be disclosed. This is established through legislation (Criminal Procedure and Investigations Act 1996), the Code of Practice issued under it (the Code), and the Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners, 2013.4 The Guidelines are designed to ensure that there is a fair system for the disclosure of unused material.
Unused material is material that may be relevant to the investigation, that has been retained, but that does not form part of the case for the prosecution against the accused. This requires investigators and prosecutors to review all the material which has been obtained during the course of the investigation in order to determine whether it falls to be disclosed to the accused, including statements, documents, CCTV evidence, and evidence obtained from witnesses on whom the Prosecution does not rely. It may include disclosure of any previous offending history of victims which could go towards undermining their credibility. Where evidence or documents are considered sensitive and the Prosecution does not wish it to be disclosed, then the prosecutor must make an application before the court to withhold that evidence. This is known as a Public Interest Immunity application.
Routledge Handbook of Human Trafficking Page 45