King's College London

On 16 February 2021, Parosha Chandran, barrister and Professor of Practice in Modern Slavery Law at The Dickson Poon School of Law, won a landmark judgement on human trafficking and the non-punishment principle before the European Court of Human Rights (ECHR).

The case - V.C.L and A.N v the United Kingdom – concerned two Vietnamese children found working on cannabis farms by police in 2009. Both were convicted of drug crimes and detained in young offenders’ institutions despite indications they were child victims of trafficking who were being subjected to enforced criminal activity and forced labour.

The ECHR ruled that Britain had breached two Articles relating to the protection from trafficking and the prohibition of forced labour (Article 4) and the right to a fair trial (Article 6). This is the first time the ECHR has considered the relationship between Article 4 and the prosecution of victims of trafficking, passing a landmark judgment of non-punishment as a result.

Professor Chandran, a world-leading expert on the non-punishment principle and Counsel for A.N since 2010, expressed her satisfaction at the outcome. She said, “This landmark judgment is a game-changer not only for A.N. and V.C.L and other victims of trafficking who commit unlawful acts as a direct consequence of their trafficking but for all victims of trafficking as the Court has further clarified the highly protective ambit of Article 4 ECHR in trafficking cases”.

The Court unanimously found that the British authorities failed to uphold their obligations under Article 4 by not referring the children to a competent authority for an identification assessment despite credible signs of trafficking, and by continuing to prosecute them despite a subsequent formal and lawful identification by the Home Office that they were child victims of trafficking.

The Court also found a breach of fair trial guarantees through the UK’s failure to identify the children as being potential trafficking victims at the time of their detection which affected the overall fairness of their trials and may have prevented them from securing important evidence that could have supported their defence.

As a result, the proceedings could not be deemed fair, and there was unanimous agreement this violated Article 6(1) of the Convention.

The ECHR has ordered Britain to pay compensation and costs totalling 90,000 euros - 25,000 euros in damages and 20,000 euros in legal expenses per applicant.

Professor Chandran said, "The Court awarded the highest damages ever given in a trafficking case under Articles 4 and 6 ECHR. Whilst it was less than we had hoped for, again an important precedent has been set”.

The British Government has three months to appeal the ruling made by seeking to refer it to the ECHR Grand Chamber.

There has been worldwide interest in this ground-breaking case.

Professor Siobhan Mullaly, UN Special Rapporteur on Trafficking in Persons, said: “This is a hugely significant judgment, highlighting serious gaps in the protection of child victims. The courage of the applicants is remarkable, given the trauma that they have endured. It is critical now that this judgment is effectively and urgently implemented, and that the State takes seriously its positive obligations to protect all child victims of trafficking, without discrimination. Children who are victims of trafficking must be protected, not punished.”

La Strada International, the eminent international network of NGOs working with trafficked persons, said: “Today’s ECtHR judgment is very important for trafficked persons and for organisations working with them and for them in terms of advancing their rights. Despite international and European legally binding standards on non-punishment, trafficked persons in Europe are often still wrongly detained, prosecuted and punished for offences, they have been compelled to commit in the course, or as a result, of having been trafficked. This is a serious human rights violation and a denial of justice and reinforces distrust towards the criminal justice system by victims and others.”

U.S. Ambassador (ret.) Luis C. deBaca, who coordinated global anti-slavery efforts for President Barack Obama, said: “Parosha Chandran’s innovative and relentless human rights lawyering has resulted today in a major global advance in the law — Article 4’s guarantee of freedom is now clearly not simply a prohibition of slavery, but creates affirmative duties for States to confront and remediate slavery, including for victims who commit offences as a direct consequence of their trafficking.”

In 2019 more than 10,000 suspected modern slaves were identified in Britain, a rise of 52% from the previous year. The CODID-19 pandemic is thought to have made it increasingly difficult to identify and help victims of modern slavery in Britain.

A detailed case summary from Professor Chandran’s chambers, One Pump Court, can be read here.