In the Dock

POPPY by the Foreign Nationals Officer at a prison. She was assessed by the POPPY project workerat the prison and referred into the NRM and received a positive reasonable grounds decision. Beforeher bail hearing at the Magistrate’s Court, the POPPY project worker was able to contact the woman’scriminal solicitor and wrote a letter for the Court on her behalf explaining that POPPY believed her tobe trafficked, that they had referred her to the NRM and recommended that the charges weredropped. The CPS guidance was also referred to. The CPS at the Court called the POPPY projectworker to confirm their identity. The CPS indicated that they were keen to halt the prosecution butneeded additional evidence. The POPPY project worker drafted a short report and it was agreed thatthey would return to Court in two weeks’ time. At that hearing, the report was produced and the CPSdropped the charges as they concluded that she was trafficked.The more serious the offence, the more likely it is that a prosecutor will considered it in the publicinterest to pursue a prosecution. The ATMG is aware of a case where a NRM identified victim wascompelled to commit a string of serious offences and were prosecuted despite also being abused.This seems to point to a hierarchy of discontinuance i.e. the more serious the offence, the less likelythe prosecution is to be halted or the conviction reversed. As current trafficking for cannabis cultivationinvolves exclusively Vietnamese and Chinese trafficked persons, and as these cases are stillsystematically prosecuted and convicted, there is possible discrimination in these nationalitiesaccessing protections under the Convention. 319In cannabis cases, a tension exists between the pressures placed on CJS actors by sentencingguidelines for drug offences, which state that cannabis cultivation requires a mandatory prisonsentence 320 and the Convention and Directive provisions. Furthermore, elements which are alsotrafficking indicators are listed in the guidance mitigating circumstances: offender’s vulnerability wasexploited; and pressure, intimidation or coercion falling short of duress. This may cause confusion inpractitioners’ minds as to how they should approach such cases i.e. not to prosecute the case or usetrafficking as a mitigating factor only. Some participants state that in the light of theConvention/Directive obligations, it is inappropriate to treat these as mitigating factors in sentencingas this fails to take into consideration the victim’s true condition.NRM and interplay with prosecutorial decisionsThe process of formal identification of trafficked persons under the NRM has also not proved helpful inensuring that victims are not prosecuted. NRM decisions have been used as a pawn in theprosecution’s case where their decision to prosecute has rested on the outcome of the NRMCompetent Authorities findings. One legal practitioner who has appealed convictions against traffickedpersons asserted:“I have had experience where the prosecution will just try and rely on the outcome of the NRM, if theyknow about the NRM, rather than actually taking on board their own guidance, looking at the facts anddeciding for themselves.”Nevertheless, there is evidence to suggest that even if an individual arrested or charged with anoffence receives a positive NRM decision, the CPS can nevertheless pursue charges. This is due tothe fact that the NRM decision is a civil decision (balance of probabilities) and therefore deemed of a“lower” level than the criminal justice burden of proof - beyond reasonable doubt. A positive NRM319Article 3 – Non-discrimination principle: The implementation of the provisions of this Convention by Parties, in particular theenjoyment of measures to protect and promote the rights of victims, shall be secured without discrimination on any ground such assex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property,birth or other status.320Sentencing Advisory Council, Advice to the Sentencing Guidelines Council: Sentencing for Drug Offences (2010) p.33. Availableat: www.drugscope.org.uk/Resources/Drugscope/Documents/PDF/Good%20Practice/sentencing_for_drug_offences.pdf [lastaccessed 31March 2013].96