Posted by NAYJ on Mar 19, 2018
Guidance from the Home Office states that children as young as 12 are being trafficked by criminal gangs to transport and distribute illegal drugs within the UK. Targeted children commonly come from unstable backgrounds; with histories of abuse, unavoidable gang ties, and mental health presentations.
The UK has domestic and international duties to protect such children from being trafficked. These duties come from different sources, including the: UN Convention on the Rights of the Child, Palermo Protocol, Convention on Action Against Trafficking in Human Beings, European Convention on Human Rights, the EU Directive 2011/36, and the Modern Slavery Act 2015.
County lines cases
But the UK is still failing to effectively fulfil its duties. In 2017 alone, 65% of forces reported child exploitation in county lines drugs cases. ‘County lines’ refers to the supply of illegal drugs from urban to suburban and coastal areas using mobile phone lines.
Children are targeted by these networks because they help their operations to run more effectively and profitably: children are less likely to be known to, or even suspected by, the police; they are less demanding; and they face more lenient criminal sentences than adults.
These gangs use children to transport and distribute drugs. They lure and control children by grooming them using gifts and false impressions of guardianship and protection. Violence is also common. They then arrange their accommodation and travel to and from places.
Section 2 (1) of the Modern Slavery Act 2015 contains the offence of human trafficking: arranging or facilitating another person’s travel with a view to that person being exploited. Section 2 (5) states that travel includes ‘travelling within any country’. Children whose travel is being arranged or facilitated within the UK with a view to that child being exploited in county lines cases is therefore covered by the Act.
On 17 January 2018, at a Westminster Hall debate on the issue of child exploitation in county lines cases, Sarah Newton MP pledged that the UK must prioritise the welfare of children caught up in these gangs. In practice, however, children caught by the police are often charged with drugs-related offences and prosecuted. They tend to be treated as criminals, responsible for associating with gangs.
This violates the ‘non-punishment principle’, which is enshrined in, and effected by, the aforementioned laws. It demands that victims of trafficking should not be criminalised for offences committed as a direct result of their being trafficked.
Duties of the police, CPS and defence lawyers to protect child victims
To meet its legal obligations, the UK must ensure that its police forces and criminal courts are adequately trained to identify trafficking indicators and put this into practice. The UK has displayed this commitment in the context of child sexual exploitation, which it recognises as a form of abuse.
Proper training is just as crucial for preventing the criminal exploitation of children, as in these cases, indicators are also difficult to spot. Trafficked children are likely to be traumatised or too scared to reveal any abuse. Some may not even know they are being trafficked: the golden rule, said a child in a BBC documentary, is ‘loyal love’: love for the people who brought you into this game.
In general, indicators might include: missing episodes and frequent school absences, unexplained possessions or money, excessive phone communications, injuries, possession of weapons, and self-harm.
The police need to make relevant enquiries if such indicators are present, and refer potentially trafficked children to the National Referral Mechanism. The NRM was introduced in 2009 as a mechanism by which to identify potential trafficking victims. The process following a referral by the police or other first responder is two-fold: firstly, a reasonable grounds decision will be made as to whether the child is a potential trafficking victim; secondly, a conclusive decision will be made on whether it is more likely than not that the child is in fact a victim of trafficking.
This process should start before any child is charged: children should not be penalised if their involvement in drug supply networks is linked to their being trafficked for the purposes of exploitation. But often, charging decisions precede any consideration about whether the child is a victim of trafficking.
Hence why, criminal defence lawyers must take all reasonable steps to identify potential trafficking victims and be persistent and pro-active in causing enquiries to be made at the earliest stage of the case. This duty was emphasised by the Court of Appeal in R v O  EWCA Crim 2835 and L, HVN, THN and T v R  EWCA Crim 991.
If a trial proceeds despite trafficking concerns, Section 45 (4) of the Modern Slavery Act 2015 provides a statutory defence if the child: commits the offence as a direct consequence of being or having been a victim of slavery or relevant exploitation, and a reasonable person in the same situation and having the person’s relevant characteristics would have committed the offence (note, Schedule 4 contains a list of excluded offences). In R v VSJ and Others (Anti-Slavery International Intervening)  EWCA Crim 36, the Court held: ‘Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to [establish] compulsion’.
When finally at the mercy of state, children who may have been trafficked must have their rights and protections as potential victims observed. Police forces need to look out for any trafficking indicators and refer suspected child victims to the NRM. In the face of trafficking indicators, the CPS needs to make relevant enquiries to establish whether encountered children have been trafficked, instead of continuing to prosecute them. Otherwise, the current legal safeguards serve no meaningful purpose, and the child trafficking scandal will become more widespread and sophisticated.