We are pleased to welcome this guest post from Wendy Lyon, who is a trainee solicitor with KOD Lyons, a human rights and criminal law firm.
The recent High Court case of Win Lin v Governor of Cloverhill Prison ( IEHC 214) allowed a brief light to shine on the issue of trafficking for forced labour in cannabis growhouses. In Ireland and the UK, this appears to be a growing problem, affecting mainly Vietnamese and Chinese migrants. Despite strong evidence of coercion in many cases, they are regularly prosecuted under the Misuse of Drugs Acts, some receiving lengthy custodial sentences. A recent report by the Migrant Rights Centre Ireland provides some detail on the scope of the problem.
Penalising people for offences they were trafficked to commit is a breach of Ireland’s European and international obligations. Under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings, states are obliged to “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”. Article 8 of EU Directive 2011/36/EU goes further in requiring states to also allow for non-prosecution, where the alleged offence was committed as a direct result of human trafficking. The Irish government considers these provisions to be satisfied by DPP guidelines which state that in such cases “the prosecutor should consider whether the public interest is served by a prosecution of the suspect”. However, reading Article 8 in conjunction with Recital 14 of the same directive, it is clear that a policy of prosecutorial discretion will only suffice if that discretion is actually exercised in appropriate cases.
Win Lin’s case was an Article 40 (habeas corpus) application brought while Mr Lin was awaiting trial on cannabis cultivation, having been found by Gardaí locked into a growhouse. He argued that his prosecution – and hence his detention – was unlawful, having regard to the above-mentioned EU Directive. In his judgment, delivered on 23rd April, Justice Gerard Hogan declined to interpret the Directive as affording victims of human trafficking an entitlement not to be prosecuted; “Article 8”, he wrote, “at most ensures that the public prosecutor of each Member State is entitled to stipulate that no prosecution will take place where a trafficked person has been compelled to commit crimes which are as a direct result of having been trafficked”. He did, however, recognise that such a policy could not exist on paper only: “it is clear that serious consideration would have to have been given by the Director of Public Prosecutions as to whether there should have been a prosecution in the first place”. Judge Hogan also made reference to the recent UK case L, HVN, THN and T v R, in which the Court of Appeals held that any such prosecution would be deemed an abuse of process.
Mr Lin’s application failed, however, on the basis that he had not established he was a victim of trafficking in the first place. It is this aspect of the decision that is concerning, as it seems to apply a stricter definition of “trafficking” than that intended under Irish or international law.
The legal definition of “trafficking” is poorly understood, and frequently misrepresented in both media and advocacy. It derives from the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. While some countries (notably the Netherlands and UK) have vastly expanded the definition in their own domestic law, Irish law follows the Protocol by requiring the presence of three elements, which are often summarised as the “what”, the “how” and the “why” of human trafficking. These elements are contained in Sections 1 and 4 of the Criminal Law (Human Trafficking) Act 2008 as amended:
• The “what” element is satisfied where the trafficker procures, recruits, transports or harbours a person; transfers, delivers or places a person in the custody of another person; causes a person to travel into, out of or within the State; takes custody, care or charge of a person or takes a person under their control; or provides a person with accommodation or employment.
• The “how” element is satisfied by the use of coercion, threats, abduction or other force; deception or fraud; abuse of authority or taking advantage of vulnerability to the extent that the trafficked person had no real and acceptable alternative; actual/attempted sale of the person; or paying a fee or another benefit on a third party to allow trafficking to take place. The person’s consent is irrelevant.
• The “why” element is satisfied where the act is done for the purpose of exploitation, which can include labour exploitation (defined as forced labour or servitude), sexual exploitation, organ removal, forced begging or forced criminal activity.
In Mr Lin’s case, Judge Hogan explicitly accepted that the “why” element was present: “It is true that Mr. Lin was exploited in the sense that I have found that his incarceration in the growhouse amounted to conditions of servitude within the meaning of s. 1 of the 2008 Act.” He also appeared to accept the presence of the “how” element: “Mr. Lin was deprived of his liberty under the nascent – but real – threat of violence for a significant period in circumstances where, by reason of his very vulnerability in terms of language and immigration status, he could not effectively independently secure his release”. Inexplicably, however, Judge Hogan’s approach to the “what” element failed to have regard to the criteria as outlined above (and as contained in the same Section 1 of the 2008 Act that he refers to in addressing the “why”). Instead, he found that there was no evidence to show that Lin had been trafficked into the State. But there is no requirement in law that alleged victims show they were trafficked into the State. They simply have to show that they were trafficked, via the “what” and “how” elements, into the exploitative situation.
It is clear from the accepted evidence that the “what” conditions were, in fact, met: at minimum, Mr Lin was given accommodation and work by his exploiters. Indeed, this is likely to be the easiest condition for any alleged trafficking victim to satisfy. The threshold for the other two elements will generally be harder to reach; in particular, alleged victims may find it difficult to establish coercion. It is surprising to see an applicant succeed in proving those aspects of his claim, but fall on the other.
In media reports of this case, much was made of a photograph taken of Mr Lin posing with Gardaí during the visit of Queen Elizabeth. This was also a factor against him in the judgment, as it was taken to demonstrate that he was “at liberty” for some period of time. Yet Judge Hogan also accepted that at the time Lin was found, he was not at liberty and in fact had no “obvious means of escape”. The importance Judge Hogan placed on the question of how Lin entered the State prevented him from considering that the trafficking offence could have taken place after the period in which he was at liberty. But nothing in the 2008 Act, or anywhere else, suggests that it couldn’t.
There are some positives to take from this judgment. The finding that Lin’s conditions did amount to servitude and coercion will undoubtedly serve as a useful precedent, and the approval of the “abuse of process” jurisdiction for trafficked defendants is welcome (although the high degree of compulsion required under the UK judgment is a matter of some concern). Nonetheless, it is a harsh outcome for Mr Lin, who seems to have met all the criteria envisaged by the Oireachtas. It is likely to lead to harsh outcomes for others who seek to be identified as victims of trafficking – whether by the courts, the DPP or the Garda National Immigration Bureau. It will be very worrying if this judgment is seen as establishing a principle that complainants must prove they were trafficked at and from the moment they entered the State. As it is not required by the legislation, it is a burden that alleged victims of trafficking should not have to meet.