"Client is anxious to know what sort of sentence he will receive if he pleaded guilty to the charge. He confirmed that until he arrived in the UK he had never seen Cannabis before in Vietnam. On the basis of the strong evidence he was advised to plead guilty and obtain credit resulting in a discount in sentence. He was brought into this Country via an agent who upon arrival told him in strong terms [that there] was a cost attributable to his passage here. He was taken to the location where the set up was already in situ and simply told what to do. The men exploited him and then subjected him to coercion telling him that all sorts of terrible outcome would befall him if the police found out about his immigration status. In order to survive he complied and feed (sic) the plants with the men visiting only at night 2/3 times each week to feed him and provide makeshift bedding. In legal terms he was not subject to extreme duress so as to totally negate his will but would have been very fearful. He was told to remain indoors and to ensure he was always locked inside. If anyone came to the address he was to hide out of the way and warned not to speak about those who organised the Cannabis factory."
"You have his timely guilty plea your Honour and also a 24-yearold man of previous good character and before I move on to the guideline, on behalf of Mr [N] may I deal with matters more generally. He was brought into this country by an agent fairly recently. He was taken to the accommodation, told what to do. The cannabis was already in situ. He was told that for his passage to the United Kingdom was cost incurred and he will have to pay that off by feeding the plants. He wasn't allowed to leave the property. The others that he refers to visited the property every two to three days approximately to bring him food and provide him with a make-shit (sic) mattress to sleep upon. Mr [N] tells me that prior to coming to the UK [he] had not seen cannabis beforehand but of course once here, the situation was explained to him in strong terms. So you have a relatively naïve 24-year-old who although not subject to duress was certainly exploited and coerced by telling horrendous stories of what the police might do if they find out about his status. So while it is accepted that there were a high number of plants, that in respect of the guidelines I would submit that his role was a lesser role given the factors I have referred to which, of course, brings the sentencing range down considerably and those are my submissions."
"[N], you are 24 years old and, as far as I know, you have never been in trouble with the police anywhere before, and you were taken advantage of by the people who brought you here, who promised you a better life. They used you by using you as a gardener for their cannabis factory. …"
"i. The Applicant is a national of Vietnam and was first trafficked in 2005 at the age of thirteen years. He had been anxious to leave Vietnam having suffered police harassment after he joined a demonstration. His grandmother passed away leaving no one to care for him. Arrangements were made with a trafficker for the Applicant to leave the country, the Applicant signing over his grandmother's property on the understanding that this would be returned to him after working for a period of time. ii. The Applicant was trafficked initially to Hanoi and from there by other traffickers to Russia. In Russia, he was locked inside a garment factory where he worked and slept for seven years without being able to leave. He was forced to work in the factory for sixteen or seventeen hours per day without pay. iii. The Applicant was subsequently trafficked from Russia to Germany in July 2012. He was taken by traffickers to a holding place, where he stayed for one or two weeks before being able to escape. He claimed asylum in Germany and remained there for two years, but became homeless and destitute. He met some people who offered him food and a place to live if he went with them to France. In France, he discovered that these individuals were connected to the same trafficking network when he was punished for having escaped in Germany by being beaten and kicked by four or five people. iv. He was held in France for two years, working as a porter in storage, before being trafficked to the UK on15 March 2016 . He was taken to a cannabis factory in Birmingham where he was forced to work until discovered by the police on6th June 2016 during their search of the premises, which led to his arrest. •7 December 2016 – the Competent Authority (Home Office) made a positive Reasonable Grounds Decision identifying the applicant as a potential victim of trafficking; •23 January 2017 – the Competent Authority made a positive Conclusive Grounds Decision accepting that the applicant was a victim of trafficking; •14 March 2017 – the applicant was examined by a medical practitioner at the Harmondsworth Immigration Removal Centre. The medical practitioner recorded incision scars on the applicant's left index finger and left ankle, as well as blunt-trauma scars on his right shin and back and confirmed that these may be attributed to being cut with knives, punched and kicked during the trafficking situation, as described by the applicant. •25 February 2017 – refusal of the applicant's asylum claim, which was subsequently withdrawn due to inadequate consideration of the history of trafficking. •12 April 2017 – the Home Office made a further decision to refuse asylum. This was appealed and listed before the First Tier Tribunal (Immigration and Asylum Chamber) on18 May 2017 . • On11 July 2017 , the FTT promulgated its decision and reasons. It included the following: "111. I find to be extremely significant in this case, is that not only is the appellant a victim of traffickers from Vietnam to Russia, but he has also been further trafficked from Russia to Germany, and then it appears from Germany to France and then again from France to the United Kingdom. He clearly has a genuine fear that the traffickers could find him. It is not disputed that he has had repeated experiences of being trafficked into different exploitative situations, during some of which he feared for his life. … 118. Accordingly, given that the respondent had already accepted the core of his claim that he was a victim of human trafficking, and I have since found that there is not sufficiency of protection for the appellant in Vietnam and there is no internal relocation alternative, I therefore find that it would be unreasonable to expect the appellant to return to Vietnam and that he does qualify for international protection. Accordingly, I find the appellant can qualify as a refugee under the 1951 Convention Relating to the Status of Refugees. … 128. As explained in detail above, I have explained why there would be very significant obstacles to the appellant's integration back into Vietnam. As stated above, the appellant is at genuine risk of further trafficking and there is not sufficiency of protection for the appellant back in Vietnam. …"
"It is considered that your case meets part 'b' of the definition of Human Trafficking because you were threatened and told that if you ever escaped, the traffickers would find you. You escaped when in Germany and they beat you. You were told that they would return your property documents to you when you had been working for them for a while but this didn’t happen. You worked for them for 7 years in Russia and for 2 years in France. Although they fed and sheltered you, you were never paid. Your moments were monitored and you were locked into your places of work which was also where you lived."
"… as you were locked into the places where you lived and worked you had no freedom of movement nor income over which you control. In Russia you were working 16 or 17 hours in a garment factory where you also lived. When you were brought to the UK you were forced to work in a cannabis factory from where you were arrested and convicted of production of class B controlled drug – cannabis – for which you were sentenced to 4 months' imprisonment."
"Offences concerning trafficking in human beings 1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used."
"1. Huge strides have been made, domestically and internationally, in recognising the evil of human trafficking, in protecting victims of trafficking ('VOTs') and, where appropriate, shielding VOTs from prosecution or penalties. However, as repeatedly made clear, where crimes have been committed by VOTs, even arising from their own trafficking, there is no blanket immunity. Decisions are necessarily fact sensitive, taking into account the public interest both in prosecuting alleged offenders and in protecting VOTs. …"
“(i) Neither article 26 of the ECAT, nor article 8 of the Directive confers a blanket immunity from prosecution on VOTs. (ii) Instead, the UK's international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT. That discretion is vested in the prosecutor, not the court. (iii) The decisions of the FTT and the Competent Authority as to whether an individual is a VOT do not bind prosecutors or the court but will be respected (subject to submissions as to their basis or limitations) unless there is a good reason not to follow them. (iv) There is no closed list of factors bearing on the prosecutor's discretion to proceed against a VOT. Generalisation is best avoided. That said, factors obviously impacting on the discretion to prosecute go to the nexus between the crime committed by the defendant and the trafficking. If there is no reasonable nexus between the offence and the trafficking then, generally, there is no reason why (on trafficking grounds) the prosecution should not proceed. If there is a nexus, in some cases the levels of compulsion will be such that it will not be in the public interest for the prosecution to proceed. In other cases, it will be necessary to consider whether the compulsion was continuing and what, if any, reasonable alternatives were available to the VOT. There will be cases where a decision to prosecute will be justified but due allowance can be made for mitigating factors at the sentencing stage. …”
"45. Defence for slavery or trafficking victims who commit an offence (1) A person is not guilty of an offence if – (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person's circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation if – (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (4) A person is not guilty of an offence if – (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act. (5) For the purposes of this section – 'relevant characteristics' means age, sex and any physical or mental illness or disability; 'relevant exploitation' is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. (6) In this section references to an act include an omission."
"Suspects in a criminal case who might be victims of trafficking or slavery This part of the guidance applies to victims of trafficking who are also suspects in a criminal offence … Indicators of trafficking Prosecutors should be alert to the particular circumstances or situations where someone suspected of committing a criminal offence might also be a trafficked victim … Awareness of the prosecutor's obligations When considering whether to proceed with prosecuting a suspect who might be a victim of trafficking, prosecutors should be aware of the clear obligation imposed to consider whether to not toprosecute where the suspect has been compelled to commit a criminal offence as a direct consequence of being trafficked. … A three-stage approach to the prosecution decision In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following three stage assessment: 1. is there a reason to believe that the person has been trafficked? if so, 2. if there is clear evidence of a credible common law defence of duress, the case should be discontinued on evidential grounds; but 3. even where there is no clear evidence of duress, but the offence may have been committed as a result of compulsion arising from trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not … The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM) In considering whether a suspect might be a victim of trafficking, as required in the first stage of the assessment, prosecutors should have regard to the following: 1. the duty of the prosecutor to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking. 2. The enquires should be made by: advising the law enforcement agency which investigated the original offence that it must investigate the suspect's trafficking situation; and advising that the suspect is referred through the NRM for victim identification. All law enforcement officers are able to refer potential victims of trafficking through the NRM. … If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of the Competent Authority's (CA) decision on their victim status … These steps must be done regardless of what has been advised by the investigator or whether there is an indication of a guilty plea by the suspect's legal representative … Referral through the NRM and the Competent Authority decision … A conclusive decision is whether on the balance of probability it is more likely than not that the individual is a victim of human trafficking. Prosecutors should take account of the CA decision (reasonable grounds or conclusive grounds) of the identification and status of the suspect as a victim of trafficking when considering the decision to prosecute. Where there is credible evidence of trafficking (a positive CA decision) Prosecutors should consider whether or not there is clear evidence of a credible common law defence of duress, as required in the second stage of the assessment. If so, the case should be discontinued on evidential grounds. [Emphasis in the guidance] If not, consider whether or not the trafficking victim was compelled to commit the offence."
"Credible evidence of trafficking post-charge In cases where a decision has already been taken to charge and prosecute a suspect, but further information or evidence comes to light, or the status of a suspect as a possible credible victim of trafficking is raised post-conviction, for example in mitigation or through a pre-sentence report, then prosecutors should seek relevant adjournments and ensure that the steps outlined in the section 'The duty to make proper enquiries and to refer through the NRM' above are carried out."