State Obligations in International Law and the Application of the Non-Prosecution Principle: The Case of Victims of Human Trafficking Prosecuted in England and Wales

Abstract

This thesis critically examines the interconnection between state obligations in international law, and the application of the non-prosecution principle. Using the template of state obligations, this research assesses the provision of the non-prosecution principle and its application to victims of trafficking in human beings (THB). This analysis concerns trafficked victims identified in the United Kingdom (UK), specifically in England and Wales. Importantly, an assessment into the implications of the non-prosecution principle where immigration laws have been violated, because of a victim’s trafficked status, have been considered. Trafficked victims may be prosecuted for immigration offences including, possession of a forged passport or false identity document (contrary to Section 6 of the Identity Documents Act 2010) or using a false instrument (contrary to Section 3 and 5 of the Forgery and Counterfeiting Act 1981). The arrest and subsequent prosecution of trafficked victims for offences committed as a direct consequence of their exploitative situation is a recurring theme in the UK.

The non-prosecution principle is in place to provide protection for victims of trafficking, with a view to upholding their legal rights and thereby promoting prosecutorial justice for victims. However, there are some inconsistencies, in relation to the provision of the principle in the legal instruments, and its operation in factual trafficking situations. In terms of policy and practice, the State (authorities and the courts) often, wholly, or partially, fails in its implementation of the non-prosecution principle. The State’s failure to protect victims has occurred, even when an individual has been correctly identified as a credible victim of human trafficking. Thus, unfulfilled State obligations and inadequate victim status attainment, have been determined to be two of the main reasons that victims of THB are prosecuted for criminal activities carried out during their trafficking circumstance.

This research examines the different classes and categories of victims, with the aim of improving the current system of protection for victims of trafficking. The different classes of victims consist of the pure/ideal victim, historical, location and transition victims. The case of a location (exploited in a different jurisdiction outside the UK) and transition victim (victim turned perpetrator) represents an unclear area in the law. This research, therefore, considers the best practices to employ in these situations, where legal rules for new classes of victims are unclear or uncertain. The aim of the categorisation of victims is to promote protection from exploitation and to further develop the application of the non-prosecution principle. An acknowledgement of all the four classes of victims, may improve the application of the non-prosecution principle to a victim’s trafficking circumstance.