Queyen Van Phan v. Her Majesty’s Advocate [2018] HCJAC 7

Reference of a compatibility issue to the High Court of Justiciary:- The minuter was indicted to Glasgow Sheriff Court on charges of inter alia producing cannabis and being concerned in the supply of cannabis, contrary to sections 4(2)(a) and 4(3)(b) of the Misuse of Drugs Act 1971. A compatibility issue minute was lodged which contended that the continued prosecution of the minuter was incompatible with Directive 2011/36/EU of the European Parliament and Council, commonly known as the Human Trafficking Directive, because the minuter had no access to a defence that he had been trafficked into the UK and compelled to commit the offences. The minute sought declarator that the Human Trafficking and Exploitation (Scotland) Act 2015 was incompatible with EU law because of the absence of such a defence; an order deserting the proceedings because of the absence of the defence on the ground of oppression; or for directions to the jury on coercion in a manner which was compatible with the Directive; or a reference to the High Court. Following numerous continued first diets a sheriff remitted the minute to the High Court. The sheriff posed the following questions:- “(1) Is the Human Trafficking and Exploitation (Scotland) Act 2015 incompatible with Directive 2011/36/EU in the absence of a statutory defence to the effect that the [minuter] had been compelled to act as he did as a direct consequence of being subject to human trafficking?; (2) In the absence of a statutory defence ... is the continued prosecution of the minuter incompatible with Directive 2011/36/EU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights?; and (3) If the ... Act and the ... continuation of the ... proceedings are compatible with Directive 2011/36/EU, and if at trial the evidence broadly follows [certain] lines ... would the court require to give additional directions over and beyond the standard directions so as to give effect to the Directive, and, if so, what additional directions should be given?” It was submitted on behalf of the minuter that questions (1) and (2) should be answered in the affirmative or, if it did not do so, to set out appropriate directions on coercion. It was submitted that the Human Trafficking and Exploitation (Scotland) Act 2015 did not provide a defence whereas in England and Wales the Modern Slavery Act 2015 had provided a statutory defence where the accused person had been compelled to commit a crime through trafficking. It was submitted that the absence of a statutory defence meant that victims of trafficking were less well protected in Scotland than in the rest of the UK. It was further submitted that the defence of coercion in its current stated form (Thomson v HM Advocate 1983 JC 69) did not provide sufficient protection to someone who had been trafficked due to, generally, the absence of immediate danger of death or serious bodily harm or an inability to resist the violence. It was further submitted that a proof in mitigation was not an effective remedy as that would only flow following conviction and the burden of proof would lie on the accused which was inconsistent with an accused’s rights. Here the court answered each question in the reference in the negative. The court stated that the option to not prosecute a person for a particular crime has always been available in Scotland and a person’s status as a trafficked person is something which might have been taken into account in deciding whether to prosecute him for a particular crime and meets the requirements of Article 8 of the Directive in so far as it requires national authorities to be “entitled not to prosecute” victims of trafficking who have been compelled to commit a crime. In Scotland there is a strong presumption against prosecution where a person has been compelled to carry out the offence as a direct effect of trafficking and that decision can be reviewed by the court where an accused advances a plea in bar of trial on the grounds of oppression. In addition, the court reiterated that the common law defence of coercion is available if the circumstances disclose that an accused has been coerced into carrying out the offence under the threat of violence. Notwithstanding what was said in Thomson about the requirement of the threat of immediate violence there may be circumstances in cannabis cultivation, for example, where a person is exposed to a threat of violence to himself or a third party from which he cannot be protected and which he is not in a position to resist to allow coercion to be pled. In the event that coercion s not made out the circumstances may nevertheless be strong mitigation. In a postscript to the opinion the court raised concerns regarding the delay in progressing the case at Glasgow Sheriff Court and the fact that before the reference was made the case called before 11 different sheriffs over a period of a year. The court reiterated the importance of compliance with Practice Note No 3 of 2015 concerning Sheriff Court Solemn Procedure and dealing with preliminary pleas and issues expeditiously.