Two Vietnamese men who were trafficked to the UK as youths and then forced to work as gardeners in cannabis factories more than a decade ago have won their claims against the UK government at the European Court of Human Rights.

They were each awarded damages of €25,000 plus costs of €20,000. Both men complained that the UK had breached article 4 of the human rights convention (prohibition of forced labour) and article 6 (right to a fair trial).

It’s only the second time the UK has been found to have breached article 4.

In 2010, Vinh Cong Le was sentenced to 20 months’ detention after he admitted producing a controlled drug at a house in Cambridge that was being used to grow cannabis.

Two years later, the Court of Appeal dismissed his appeal against conviction but reduced his sentence to 12 months’ detention.

The other man involved in today’s case, known by the initials AN, was arrested following a raid on a cannabis factory in east London in 2009. He admitted being concerned in the production of a controlled drug and was given an 18-month detention and training order. 

At the same hearing in 2012, the Court of Appeal dismissed his appeal against conviction but reduced his training order to four months.

Both men had served their sentences by the time their appeals were heard by the lord chief justice Lord Judge, sitting with two other judges.

Their lawyers had argued that, as victims of trafficking, they should not have been prosecuted. Article 26 of the Convention on Action against Trafficking in Human Beings 2005 as ratified by the UK in 2008. Its effect is to require the UK

in accordance with the basic principles of its legal system, [to] provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities to the extent that they have been compelled to do so.

The Court of Appeal decided that neither youth had been compelled to work in cannabis factories within the meaning of article 26. The Crown Prosecution Service had properly considered the evidence against them before prosecuting them and so there had been no abuse of process.

After attempts to appeal further proved unsuccessful, the two men complained that the UK had breached article 4 of the human rights convention (prohibition of forced labour) and article 6 (right to a fair trial).

The human rights court said today that the Court of Appeal had been primarily concerned with whether there had been a misapplication of prosecutorial discretion sufficient for the decision to prosecute to have been an abuse of process:

Although the applicants invoked article 4 of the convention, [the Court of Appeal] did not consider their cases through the prism of the state’s positive obligations under that article. On the contrary, it restricted itself to a relatively narrow review; in dismissing the appeals by both applicants the Court of Appeal made it clear that a defendant is provided with one opportunity to give his instructions to his legal advisors and that it would only be “in the most exceptional cases” that the court would consider it appropriate to allow the defendant to advance fresh instructions about the facts for the purposes of an appeal against conviction...

In the [Strasbourg] court’s view, such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under article 4 of the convention to take operational measures to protect them.

Consequently, the court does not consider that the appeal proceedings cured the defects in the proceedings which led to the applicants’ charging and eventual conviction.

The only previous successful claim against the UK under article 4 was brought by a Ugandan woman who complained she had been forced into working as a live-in career. She was awarded €8000 and costs in 2012.

Summarising its findings today, the human rights court said:

This was the first time the court had considered the relationship between article 4 of the [human rights] convention and the prosecution of victims and potential victims of trafficking. It considered that the prosecution of victims or potential victims of trafficking would not necessarily breach article 4 of the convention.

However, given the competent authority’s1 expertise in this area, the court considered that the prosecution would have needed to present clear reasons consistent with the definition of trafficking for disagreeing with its findings, something which clearly had not happened in these cases…

Having regard to the duty to take operational measures to protect victims of trafficking, the court held that once the authorities had become aware of a credible suspicion that an individual had been trafficked he or she should be assessed by a qualified person. Any decision to prosecute should follow such an assessment and, while the decision would not necessarily be binding on a prosecutor, the prosecutor would need to have clear reasons for reaching a different conclusion.

In the case of both VCL and AN, the [Strasbourg] court found that despite the existence of credible suspicion that they had been trafficked, neither the police nor the prosecution service had referred them to a competent authority for assessment; although both cases were subsequently reviewed by the prosecution service, it disagreed with the conclusion of the competent authority without giving clear reasons capable of undermining the competent authority’s conclusions; and the Court of Appeal limited itself to addressing whether the decision to prosecute had been an abuse of process.

The court therefore found that there had been a violation of Article 4 in both applicants’ cases.

The court found that, although the authorities had made some accommodations to the applicants after their guilty verdicts, the lack of any assessment of whether the applicants had been victims of trafficking may have prevented them from securing important evidence capable of helping their defence. As such the proceedings had not been fair, leading to a violation of article 6 § 1.

The UK has three months in which it can ask for the case to be referred to the court’s grand chamber — effectively an appeal. But most such requests are turned down.

The European court found the UK had breached the human rights convention in only two cases decided last year.