British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> PHAN AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_7 (11 January 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_7.html
Cite as: 2018 SCCR 133, 2018 JC 195, 2018 GWD 15-203, 2018 SLT 947, [2018] HCJAC 7, [2018] ScotHC HCJAC_7
[New search] [Printable PDF version] [Help]
Page 1 ⇓
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
[2018] HCJAC 7
HCA/2017/549/XC
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
THE REFERENCE OF A COMPATIBILITY ISSUE TO THE
HIGH COURT OF JUSTICIARY
under section 288ZB(1) of the Criminal Procedure (Scotland) Act 1995
in the cause
QUYEN VAN PHAN
Minuter
against
HER MAJESTY’S ADVOCATE
Respondent
Minuter: O’Neill QC, Mackintosh; PDSO, Glasgow
Respondent: Solicitor General (A Di Rollo QC); the Crown Agent
11 January 2018
Introduction
[1] This is a reference from the sheriff at Glasgow, posing the following questions:
“(1) Is the Human Trafficking and Exploitation (Scotland) Act 2015 incompatible
with Directive 2011/36/EU in the absence of a statutory defence to the effect that the
Page 2 ⇓
2
[minuter] had been compelled to act as he did as a direct consequence of being
subject to human trafficking?
(2) In the absence of a statutory defence ... is the continued prosecution of the
minuter incompatible with Directive 2011/36/EU, Article 47 of the Charter of
Fundamental Rights of the European Union and Article 6(1) of the European
Convention on Human Rights?
(3) If the ... Act and the ... continuation of the ... proceedings are compatible with
Directive 2011/36/EU, and if at trial the evidence broadly follows [certain] lines ...
would the court require to give additional directions over and beyond the standard
directions so as to give effect to the Directive, and, if so, what additional directions
should be given?”
Legislation
[2] Following upon the prohibition on slavery in the European Convention on Human
Rights, the Palermo Protocol (UN Convention against Transnational Organised Crime
December 2000) had promoted the suppression of human trafficking, especially that
involving women and children, and the need to protect and assist victims. This was
complemented by the EU Framework Decision 2002/629/JHA and the Warsaw Convention
(Council of Europe Convention on Action against Trafficking in Human Beings, May 2005).
Article 26 of the latter provided:
“Each party shall, in accordance with the basic principles of its legal system, provide
for the possibility of not imposing penalties on victims for their involvement in
unlawful activities, to the extent that they have been compelled to do so.”
The Palermo Protocol and the Warsaw Convention were ratified by the United Kingdom in
2006 and 2008.
[3] Recital 14 of the Directive 2011/36/EU of the European Parliament and Council,
commonly known as the Human Trafficking Directive, states:
“Victims of trafficking in human beings should, in accordance with the basic
principles of the legal systems of the relevant Member States, be protected from
prosecution or punishment for criminal activities such as the use of false documents,
or offences under legislation on prostitution or immigration, that they have been
compelled to commit as a direct consequence of being subject to trafficking.
Page 3 ⇓
3
The aim of such protection is to safeguard the human rights of victims, to
avoid further victimisation and to encourage them to act as witnesses in criminal
proceedings against the perpetrators. This safeguard should not exclude prosecution
or punishment for offences that a person has voluntarily committed or participated
in.”
[4] Article 8 of the Directive specifies:
“(1) Member States shall, in accordance with the basic principles of their legal
systems, take the necessary measures to ensure that competent national 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.”
The Acts referred to in Article 2 include threats, or the use of force or other forms of
coercion, abduction, fraud, deception and the abuse of power or vulnerability.
[5] Article 47 of the Charter of Fundamental Rights of the European Union provides:
“Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
Everyone is entitled to a fair and public hearing ... by an independent and
impartial tribunal ...”
[6] The Human Trafficking Directive was expressly implemented by the Human
Trafficking and Exploitation (Scotland) Act 2015. Section 8 of the 2015 Act provides:
“(1) The Lord Advocate must issue and publish instructions about the prosecution
of a person who is, or appears to be, the victim of an offence –
(a) of human trafficking ...
(2) The instructions must in particular include factors to be taken into account or
steps to be taken by the prosecutor when deciding whether to prosecute a person in
the circumstances mentioned in subsections (3) ...
(3) The circumstances are where –
(a) an adult does an act which constitutes an offence because the adult
has been compelled to do so, and
(b) the compulsion appears to be directly attributable to the adult being a
victim of an offence mentioned in subsection (1).”
Page 4 ⇓
4
[7] During the Parliamentary process, the Cabinet Secretary for Justice had explained
that, rather than placing the onus on a person to establish that he was a victim who had been
compelled to act, as had been done in other parts of the United Kingdom (Modern Slavery
Act 2015, s 45; Human Trafficking and Exploitation (Criminal Justice and Support for
Victims) Act (Northern Ireland) 2015), the Government had preferred to place an obligation
on the respondent to “produce instructions to prosecutors to deliver [a] victim centred
approach” (Official Report of the Scottish Parliament, 1 October 2015, col 55).
[8] The Lord Advocate’s instructions contain the following:
“If there is sufficient evidence that a person ... has committed an offence and there is
credible and reliable information to support the fact that the person:
(a) is a victim of human trafficking or exploitation
(b) has been compelled to carry out the offence and
(c) the compulsion is directly attributable to being the victim of human
trafficking or exploitation,
then there is a strong presumption again prosecution of that person for that offence.”
Facts
[9] On 26 April 2016, the minuter was found in a flat in Forth Street, Glasgow which, it
appears to be accepted, was being used for the purposes of cannabis cultivation. There was
£100 in cash, adequate supplies of food and drink and a key available in the flat. Although
the minuter said that he did not know where the key was, the police account is that it was
hanging on the wall of the only occupied bedroom. The minuter was arrested and charged.
No interview in relation to the offence took place.
[10] On 27 April 2016, the minuter was interviewed by the police as a potential victim of
human trafficking. He gave an account of being taken by persons unknown from Vietnam
Page 5 ⇓
5
to Scotland, via Russia and France, hidden in a large lorry with more than 20 others. He had
not been on a plane or boat. His abductors had said that they would arrange for him to
work lawfully in the UK. He was happy with that, explaining that he was just “following
instructions”. He had previously registered with his abductors in Vietnam in answer to an
internet advertisement. He did not know their names, but they had many offices in
Vietnam, including one in Hanoi. The minuter had worked on a rice farm. He had had no
education. His travel was to be paid for and he would repay it from his UK wages. Once in
the UK he was locked in a house before being taken to the flat where he was asked to look
after the cannabis plants. He had asked to leave the flat many times but had been beaten up.
He had been locked in for 2½ months. The persons beating him up had been westerners
who had communicated with him using “body signals”. He had been paid £100 for painting
work.
[11] On 16 December 2016, the minuter was interviewed by the Home Office. He said
that he had a wife and two sons. He had left his home in Phuong Vinh Tan (300 miles north
of Hanoi), Vietnam in May 2015 and travelled to Russia by plane before arriving in France.
He had stayed for three months in the “jungle” before getting on a lorry and arriving in the
UK sometime between October and December. Although his wife and children were now in
hiding, he had been able to contact them in November or December by using a phone which
he had been given. He had agreed to pay $18,000 for the journey to the UK and had handed
over his land and property in security. He had been working as a market porter. He had
had 5 years schooling. He had gone to a hotel in Hanoi and then flown from Hanoi to
Russia before arriving in France in about June or July 2015. He had stayed there for 3 or
4 months. He had then gone to the UK by lorry, although he had not known where he was
until his arrest. The minuter had been told that he would have to work for 2 years to pay off
Page 6 ⇓
6
his debt. He had been shown how to tend to the plants by a person who had stayed in the
flat for the first week. Food was provided in the fridge and freezer. He was told not to
leave. He was locked in. He had asked to leave, but his captors had threatened to, and did,
beat him up because he had refused to work.
[12] The conclusion of the Home Office was that the minuter had not been trafficked. The
Home Office interpreted the Palermo Convention as meaning that trafficking involved the
victim being coerced or deceived into a situation in which he or she was exploited. In its
decision, dated 25 January 2017, the Home Office determined that the minuter was not a
credible witness given the inconsistencies in his accounts to the police and to the Home
Office, not all of which are repeated here.
[13] The respondent reviewed the facts and determined, applying the guidelines, that
there was no reasonable basis for concluding that the minuter was the victim of trafficking
and, in any event, the necessary element of compulsion to commit the offence was not
present. The minuter was accordingly placed on petition.
Procedure
[14] The minuter was indicted on charges of producing cannabis and concern in the
supplying of cannabis, contrary respectively to sections 4(2)(a) and 4(3)(b) of the Misuse of
Drugs Act 1971 and theft of electricity. A compatibility minute maintained that the
continued prosecution of the minuter was incompatible with the Directive because the
minuter had no access to a defence that he had been trafficked into the UK and compelled to
commit the offences. The minute sought: a declarator that the 2015 Act was incompatible
with EU law because of the absence of such a defence; an order deserting the proceedings
because of the absence of the defence on the ground of oppression; or for directions to the
Page 7 ⇓
7
jury on coercion in a manner which was compatible with the Directive; or a reference to the
High Court. A first diet was allocated for 3 August, with a trial diet on 22 August 2016.
Thereafter, the case called on no less 11 occasions before, remarkably, 11 different sheriffs
before one of those sheriffs decided to take a decision to remit the matter to the High Court.
[15] The sheriff determined that it would not be appropriate to desert simpliciter, since it
guidelines had been cited with approval in the Council of Europe’s Group of Experts on
Action Against Trafficking in Human Beings (Report concerning the implementation of the
Council of Europe Convention on Action against Trafficking in Human Beings by the United
Kingdom, Second Evaluation Round, 7 October 2016) and the Anti Trafficking Monitoring
Group, in October 2016. The respondent’s guidelines, which contained a presumption
against the prosecution of victims of trafficking, were compliant with the Directive. That
Directive allowed member states to devise their own systems of implementation. The 2015
Act placed responsibility for the decision to prosecute on the respondent. This was in
accordance with the traditional approach to prosecution. The respondent’s decision had
been made after consideration of compulsion. It had not determined the outcome of
proceedings and could not affect the fairness of the trial. The minuter was free to lead
evidence in support of his position that he was a victim of trafficking. In these
circumstances, the minuter had not been deprived of any rights that he may have had under
the Directive. His rights under Article 6 had not been breached.
[16] The issue of punishment was a matter which, according to the sheriff, gave rise to
real difficulty. Evidence that the minuter was the victim of trafficking was not a recognised
defence, as it was elsewhere in the UK. Even if the jury accepted his account of trafficking,
Page 8 ⇓
8
the minuter would still face conviction and sentence unless his position fell within an
existing category of special or statutory defence. The sentencing sheriff would not know
whether the jury had, or had not, accepted the minuter’s account. The defence of coercion
required the minuter to establish that he had acted under an immediate danger of death or
met if the minuter had been acting under duress of a serious, but not immediate, kind.
Submissions
Minuter
[17] The minuter moved the court to answer questions (1) and (2) in the affirmative or, if
it did not do so, to set out appropriate directions on coercion. Attention was initially
focused on the scale of the human trafficking problem; it not being unusual for victims to be
Vietnamese being exploited for the purposes of cannabis cultivation. The international law
background had commenced with the prohibition of slavery in the European Convention
(Art 4). Since 2000, a series of international conventions had addressed the situation, notably
the Palermo Protocol, the EU Framework Decision 2002/629/JHA and the Warsaw
Convention.
[18] The Charter of Fundamental Rights contained a prohibition on slavery, and a specific
one relative to trafficking. Article 47 provided that everyone, whose rights and freedoms
were guaranteed by EU law, had a right to an effective remedy; that being one which was
3, AG at para 84; C-682/15 Berlioz Investment Fund v Director of Direct Taxation Administration
[2018] 1 CMLR 1 at para 44). There had been a shift in the general approach from respect for
Page 9 ⇓
9
procedural autonomy to the protection of substantive rights (C-73/16 Puskar v Slovakia,
30 March 2017, unreported, AG at paras 46-51; Berlioz Investment Fund (supra) at paras 44-56,
83-84). There required to be an effective opportunity to challenge the respondent’s decision
to prosecute. National courts had a duty of “sincere co-operation” (R (Miller) v Secretary of
18 December 2014, unreported).
[19] In England and Wales, the Warsaw Convention had been implemented (R v M
necessity; (2) specific rules for the guidance of prosecutors; and (3) the power of the court to
stay a prosecution as an abuse of process. Careful consideration required to be given as to
whether prosecution and punishment should follow in the case of a victim where the crime
had been something which he or she had been compelled, in a broad sense, to commit. The
matter was fact-sensitive. The Modern Slavery Act 2015 had provided a statutory defence
where the accused person had been compelled to commit a crime through trafficking. It was
a requirement that a reasonable person, in the same situation, would have had no realistic
alternative but to commit the crime. The Human Trafficking and Exploitation (Criminal
Justice and Support for Victims) Act (Northern Ireland) 2015 had achieved much the same
purpose in Northern Ireland, although it only provided a defence in respect of the
cultivation, and not concern in the supplying, of cannabis.
[20] The Human Trafficking and Exploitation (Scotland) Act 2015 did not provide a
defence. This had been an intentional decision by Parliament, following upon the statement
by the Cabinet Secretary for Justice. For the purposes of EU law, the question of whether
there had been differential treatment depended upon whether the primacy, unity and
Page 10 ⇓
10
effectiveness of EU law had been compromised. The fact that there was no statutory defence
meant that victims of trafficking were less well protected in Scotland than in the rest of the
UK. Such an approach required to be justified substantively and by reference to the
requirement of legality. The justification given failed to recognise the procedural rights of
victims under Article 47, when the prosecutor decided whether to prosecute. The Directive
gave the minuter a right to have the question, of whether he was a victim and had been
compelled to commit the offence, determined at a fair and public hearing by an independent
and impartial tribunal.
[21] The defence of coercion (Thomson v HM Advocate (supra)) did not provide sufficient
protection because, in many cases at least, there was no immediate danger of death or
serious bodily harm or an inability to resist the violence. Many of those, who had been
compelled to commit offences as a direct consequence of being subject to the prohibited acts,
would not be able to rely on the defence as it was currently expressed (see van Dao v R
[2012] EWCA Crim 1717 for the position in England).
[22] A proof in mitigation was not an effective remedy. If an accused person had a
substantive defence, or there were issues related to other fundamental rights, these would be
lost if a proof in mitigation was the only method by which protection could be secured.
Mitigation could not be advanced where it was inconsistent with a plea of guilty. Any plea
would proceed on a narrative in which the Crown would wish to state that the accused had
Even if the narrative did not contradict the plea, the burden of proof would lie upon the
accused, and that was not consistent with an accused’s rights.
[23] The question, of whether the minuter had been compelled to act as he did as a result
of trafficking, required to be decided in a procedurally fair manner. Great deference was
Page 11 ⇓
11
given by the courts to the Lord Advocate. There was no “robust tradition” of independent
judicial review of his decisions (Hester v MacDonald 1961 SC 370 at 378-379; Crichton v
JC 155). This was in contrast to the position in England (R (Corner House Research) v Serious
Fraud Office [2009] 1 AC 756 at paras 30 and 32). There was no case in which the Lord
Advocate’s discretion in the context of a criminal prosecution had been subject to a
successful review (see Stuurman v HM Advocate 1980 JC 111).
[24] The Lord Advocate had not acted in a procedurally fair manner. The Crown had
given an undertaking not to use the police interview of the minuter in the prosecution, yet
the foundation of the Crown’s conclusion, that he was not the victim of trafficking, had
stemmed from the Conclusive Grounds Decision Notification, which had relied on a
comparison between what the minuter had told the police and what he had said to the
Home Office.
that domestic law was compatible with the obligations under the international conventions.
That reasoning could not apply in Scotland, because there was no power to stay a
prosecution akin to that in England. In the absence of such a power, the court required to
create a defence which would give effect to the Directive in a procedurally fair manner. If it
did not do so, the continued prosecution of the minuter would be oppressive.
[26] The submission relative to Article 6 of the European Convention was departed from.
Respondent
[27] Section 8 of the 2015 Act required the respondent to issue and publish instructions
about the prosecution of a person who appeared to be the victim of human trafficking. The
Page 12 ⇓
12
instructions required certain factors to be taken into account. The respondent had issued
and published instructions in accordance with section 8. They provided that there was a
strong presumption against prosecution where there was credible and reliable information
that: the accused was a victim of trafficking; he or she was compelled to commit the offence;
and the compulsion was directly attributable to being a victim.
[28] The respondent had appointed a National Lead Prosecutor for Human Trafficking
and Exploitation. All cases required to be reported to him for a final decision. If
information came to light, which suggested that the accused was the victim of human
trafficking, the prosecutor was required to investigate. Where information came to light
after conviction, the prosecutor had to apply to have the conviction quashed.
[29] Article 8 of the Directive provided that the approach taken to implementation was to
be in accordance with the basic principles of the legal systems of each member state. The
Directive allowed for different approaches (C-571/10 Kamberaj v Instituto per l’Edilizia sociale
della Provincia autonoma di Bolzano (IPES) [2012] 2 CMLR 43 at para 77). Article 8 did not
require a statutory defence (see also recital (14)). Member states were only required to
ensure that the national authorities “were entitled” not to prosecute or to impose penalties
on victims.
[30] Prior to the Directive, the principal European instrument relating to human
trafficking had been the Warsaw Convention. It had not formed part of EU law, as it had
not been signed or ratified by the EU. Article 26 did not require a blanket immunity from
prosecution, nor did it provide a defence. Rather, an assessment of whether a prosecution
approach could be taken in the interpretation of Article 8.
Page 13 ⇓
13
[31] The prosecutorial discretion of the respondent was a basic principle of the legal
system (McBain v Crichton (supra) at 29; Stewart v Payne (supra)). The respondent required to
consider whether prosecution was in the public interest, even where there was sufficient
evidence (The Crown Office & Procurator Fiscal Service Prosecution Code, page 6). The
respondent’s discretion not to prosecute, taken together with the publication of criteria to be
taken into account when exercising that discretion, was sufficient to satisfy the requirements
of Article 8. It had been held to satisfy the requirements of Article 26 of the Warsaw
Convention in England and Wales (R v M(L) (supra)). The introduction of a statutory defence
did not affect the compatibility of the English common law with the requirements of Article
26 (R v Joseph (Verna) (supra)). It had been described as a backstop to the prosecutorial
para 131). Where the commencement or continuation of a prosecution breached a European
Convention right, the court had the power to halt the prosecution (Butt v Scottish Ministers
2013 JC 274, at para 16).
[32] The obligation imposed on the respondent by section 8 of the 2015 Act had not been
necessary to ensure compliance with Article 8 of the Directive. Rather it served to codify the
factors which would be taken into account (Policy Memorandum to the Human Trafficking
and Exploitation (Scotland) Bill, para 52). The Scottish regime had been endorsed by the
GRETA report (supra). Individuals who had voluntarily committed criminal offences could
seek to avoid punishment by falsely claiming to have been compelled to do so. This
phenomenon was not uncommon amongst Vietnamese nationals who were involved in
cannabis production (Combating modern slavery experienced by Vietnamese nationals en route to,
and within, the UK, Independent Anti-Slavery Commissioner Report 2017, paragraph 4.2.2).
Page 14 ⇓
14
The need for a balanced, thorough and careful investigation was emphasised in the
respondent’s instructions.
[33] The existence of a statutory defence in other UK jurisdictions was irrelevant to the
compatibility of the 2015 Act with EU law. The existence of alternative approaches within
the UK did not constitute discrimination (C-428/07 R (on the application of Hovarth) v Secretary
of State for the Environment, Food and Rural Affairs [2009] ECR I-6355 at para 58). The regime
was to be distinguished from a situation where one part of the UK differentiated between
citizens based on whether or not they were residents of that part (R (A) v Secretary of State for
Health [2017] 1 WLR 2492, at para 37-49).
[34] Article 8 did not require any particular approach to be taken by member states. A
judge was entitled to take into account the fact that an accused was the victim of trafficking
at the point of sentence. The sentencer could grant an absolute discharge in almost all cases.
The requirement that member states confer a discretion on the national authorities was
subject to the caveat that such provision should be made in accordance with the basic
principles of their own legal systems.
[35] The continued prosecution of the minuter was not incompatible with the Directive,
as it did not confer on any person the right not to be prosecuted or punished. The continued
prosecution of the minuter was not incompatible with Article 8 of the Directive or Article 47
of the Charter. The second question should be answered in the negative.
[36] No additional directions over and above the standard directions on coercion were
required. The task of the jury was to determine guilt or otherwise. The question of
compulsion by virtue of being trafficked was a discrete question which went only to
mitigation, unless the circumstances were such as to amount to the recognised defences of
coercion or necessity. Mitigation was a matter for the judge to consider at the point of
Page 15 ⇓
15
sentence, having heard any relevant evidence during the trial or any proof in mitigation.
The third question should be answered in the negative.
Decision
[37] Article 47 of the Charter of Fundamental Rights of the European Union provides that
everyone whose rights and freedoms are guaranteed by EU law has a right to an effective
remedy before an independent and impartial tribunal. The first question is whether the
minuter’s rights and freedoms under EU law have been violated. That in turn depends
upon Article 8 of the Directive 2011/36/EU. This provides that member states require to
ensure that national authorities are entitled not to prosecute or to impose penalties on
victims of human trafficking for their involvement in crimes which they have been
“compelled” to commit as a “direct consequence” of, in essence, threats, the use of force or
other forms of coercion. It does not require that such victims are not prosecuted or
punished. It does not confer a right on such victims not to be prosecuted or punished. What
must be available is an option. No doubt, if such an option were not available in Scotland,
proceedings could be taken to challenge that or any action taken without due consideration
of such an option.
[38] An option not to prosecute a person for a particular crime has always been available
in Scotland; it being a matter for the respondent to decide whether to do so in the public
interest. Whether a person was a victim of trafficking is something which might have been
taken into account in deciding whether to prosecute him for a particular crime.
Nevertheless, increasing recognition of the problem of trafficking and, of course, the terms
of the Directive and its international antecedents, prompted the passing of section 8 of the
Human Trafficking and Exploitation (Scotland) Act 2015. This required the respondent to
Page 16 ⇓
16
publish instructions on that matter, specific to those who appear to be victims of human
trafficking. The respondent has done this by creating a strong presumption against the
prosecution of such persons where there is credible and reliable information to support the
fact that the person has been compelled to carry out the offence as a direct result of
trafficking.
[39] The existence of such a discretion meets the requirements of Article 8 of the Directive
in so far as it requires national authorities to be “entitled not to prosecute” victims of
trafficking who have been compelled to commit a crime. In this respect, the court agrees
Wales held that, in respect of pre Modern Slavery Act 2015 cases, the common law remained
compatible with existing international obligations, not just Article 26 of the Warsaw
Convention with its focus on penalties, but also Article 8 of the Directive (cited at para 14).
The Article 26 obligation had, in terms of the previous case law, been given effect through:
(1) the common law defences of duress and necessity; (2) guidance to prosecutors on the
exercise of the discretion to prosecute; and (3) the power of the court to stay a prosecution
for an abuse of process (para 20(i)), but the court also noted (para 20(ii)) the place of
prosecutorial discretion, the context of which is Article 8. The situation is not materially
different in Scotland.
[40] First, there is vested in the respondent a general discretion not to prosecute. This is
transmitted to prosecutors along with a specific instruction which provides a strong
presumption against prosecution where a person has been compelled to carry out the
offence as a direct effect of trafficking. Although the court may give due deference to the
respondent in taking a decision to prosecute, that decision could be reviewed by the court
where an accused advances a plea in bar of trial on the grounds of oppression. Such a
Page 17 ⇓
17
review may very well succeed if, for example, the decision had been taken without regard to
the respondent’s instructions or if any prospective trial would inevitably be unfair (Butt v
Scottish Ministers 2013 JC 274, LJC (Carloway) at para 16) having regard to the terms of any
international obligations or EU law. However, no grounds have been advanced to suggest
that the decision to prosecute the minuter was not properly taken in the context of the
presumption contained in the instructions. The material available suggests that there were
significant factors pointing away from the minuter having been trafficked in favour of him
being a willing economic migrant.
[41] As in England, there is no blanket immunity from prosecution for victims of
trafficking. Various factors require to be taken into account when deciding whether to
prosecute, including the gravity of the offence. Each case will turn on its own facts and
circumstances but, unless there is material to contradict the respondent’s findings or to
demonstrate that significant evidence has been ignored by him, then, as in England (R v
Joseph (Verna) (supra) at para 20(viii) citing R v L (C) [2014] 1 All ER 113 at para 28), the courts
would be unlikely to stop the prosecution at a preliminary stage
[42] Secondly, the common law in relation to coercion is available if the circumstances
reveal that an accused has been coerced into carrying out the cultivation of cannabis under
threat of violence. It is important to observe that the locus classicus (Thomson v HM Advocate
1983 JC 69) was concerned with the robbery of a Post Office sorting-office using firearms. It
was rather different from the more placid, but time consuming crime of cultivating cannabis.
In the context of a single violent act, committed in a place accessible through public spaces
where resort to the forces of law and order will normally be possible, there is a need for any
coercion to involve a threat of immediate serious violence. As was made clear in Thomson
(LJC (Wheatley), delivering the Opinion of the Court, at 78), “the defence of coercion is
Page 18 ⇓
18
normally only open when it is based on present danger from present threats” (emphasis
added). It is properly tested having regard to: (1) the existence of immediate danger of
violence; (2) the absence of an ability to resist or avoid the danger; (3) the extent of the
accused’s role in the crime; and (4) the disclosure of the fact of coercion, and the return of
any proceeds of the crime, on the first safe and convenient occasion. The third and fourth
elements are not essential but are rather factors to be included in the assessment of the
credibility and reliability of the primary account. Throughout Thomson, as in the passages in
Hume (Commentaries i. 53) cited, there are repeated qualifications using the words
“normally” or “generally”. It will always be a matter of facts and circumstances whether a
person was truly coerced (or compelled) to commit a crime by virtue of genuinely
anticipated and unavoidable violence.
[43] In the case of cannabis cultivation, for example, if the farmer is confined to a flat in
which the cannabis is grown, and has reasonable grounds for believing that, if he does not
tend to the crop, he will be seriously injured on the arrival of those controlling the operation,
the defence may well be made out. Thomson correctly stressed (at 78) the need, as in the
related defence of self-defence, to strike a fine balance between the nature of the danger
threatened and the seriousness of the crime. Nevertheless, there may be circumstances in
which a person is exposed to a threat of violence to himself or a third party from which he
cannot be protected by the forces of law and order and which he is not in a position to resist.
Where such a situation arises, as it may do in a trafficking situation, its effect in law would
have to be assessed on its particular facts.
[44] Thirdly, even if the circumstances do not amount to the defence of coercion, they
may nevertheless provide powerful mitigation. It will be a matter for the minuter to decide
whether to plead not guilty and to run a defence of coercion. If the matter goes to trial and
Page 19 ⇓
19
the jury reject coercion as a defence, the minuter can still maintain that he was nevertheless
trafficked and that that had a bearing on the degree of his culpability. The fact that the jury
have not been asked to rule on the fact of trafficking or its effect, other than in the context of
coercion, has no bearing on the sheriff’s ability to assess that fact and its bearing. As with
many potential mitigating factors, the sheriff is entitled to form a view based upon the
evidence heard. This may include the testimony of the minuter himself. If he has not given
evidence prior to a guilty verdict or he elects to plead guilty, he can still make such
submissions about his personal circumstances (including being a victim of trafficking) as he
wishes and, if there is a material issue of disputed fact, he has the option of a proof in
mitigation. In all of these various situations, the sheriff has a discretion to reduce what
would otherwise normally have been the appropriate sentence. The sheriff’s concerns in this
area are misplaced and the contention that a proof in mitigation is not an effective
mechanism is rejected.
[45] In a case such as the present, where there are established parameters in relation to
the level of custodial sentence may be appropriate. In other situations, a non-custodial
disposal may be imposed. In some, an absolute discharge might be given (Criminal
Procedure (Scotland) Act 1995, s 246), in which case there is in effect no conviction other
than for specific purposes (ibid s 247). What is clear is that the sheriff has a wide discretion
in deciding what, if any, penalty should be imposed where the person convicted has been a
victim of trafficking and this has encouraged him to commit the offence, albeit that the
common law defence of coercion has not been made out.
[46] The court will answer each question in the reference in the negative.
Page 20 ⇓
20
Postscript
[47] This case was indicted for a trial diet in August 2016. When the matter called at the
First Diet on 3 August 2016, the trial diet was postponed to 3 October with 7 September
being a “further” first diet. This was said to be in order that “further discussions” take place
regarding a potential Home Office decision. On 7 September 2016, it was said that the case
was likely to proceed to trial and the outstanding matters were continued to that diet. On
14 October, the trial diet was postponed until 20 February to allow “further investigations”
with a “first diet and hearing” on the preliminary minutes allocated for 30 January 2017. On
the latter date the “evidential hearing” was continued until 13 February to allow time to
consider the Home Office decision. On 13 February, the hearing was discharged because the
decision was still awaited. A new diet of 20 February was set for an “evidential hearing”
with a trial diet on 27 February. On 20 February, the trial diet was postponed to 3 April 2017
and a “continued first diet and debate” assigned for 13 March 2017. On the latter date, the
compatibility minute was continued to the trial diet, with a new diet for other preliminary
issues assigned for 27 March. On the latter date, an undertaking not to use the “police
interview” at the trial was given. On 12 April 2017, the trial diet was “adjourned” to 18 July
2017, and a first diet assigned for 30 June 2017. On the latter date, a “further first diet” was
fixed for 10 July and that was also to form an evidential hearing relative to the compatibility
minute. The case ultimately called on 10 July, when argument was finally heard.
Throughout this period, extensions of the 12 month time bar were granted, with the last one
being to 4 December 2017.
[48] Perhaps the most remarkable element of the procedure is the fact that the case called
before eleven different sheriffs over a period of almost a year before argument was heard
and a reference made. Such a delay is unacceptable and is not justified by the various
Page 21 ⇓
21
explanations, some of them repetitive, minuted. It is particularly regrettable in a case of this
type where the issue of trafficking was raised. The conduct of the First Diets appears to
have repeatedly contravened the clear terms of the Practice Note No 3 of 2015 concerning
Sheriff Court Solemn Procedure, notably the direction that preliminary pleas and issues
ought to be dealt with at the (first) First Diet and not continued repeatedly, sometimes to
another First Diet and often to a trial diet which ultimately, and not surprisingly, did not
take place. It is disturbing to note the large number of sheriffs who appear to have allowed
this to occur.