When the decision landed in Begum v SSHD [2024] EWCA Civ 152 (23 February 2024), by chance, I was newly emerged after a deep dive into the appellate workings of our criminal law and the Convention claims of potentially trafficked children.

Earlier in the week I completed a request to the CCRC for referral to the Court of Appeal (Criminal Division) of the case against conviction of a European national subject to deportation for his role as a child alongside three adult co-defendants in the professional armed robbery of a jewellery store in 2012. He got 11 years.

Seldom do we find children engage in such serious criminality, especially ones aged 16. So seldom is it, there is nothing in the sentencing guidelines to indicate the starting point for a young offender who, as one of four masked men with hammers and a gun, jumps from a stolen vehicle into the main precinct of a shopping centre in a provincial town with which he has no remote connection and proceeds in broad daylight to relieve the store of jewellery items worth £68,000. Evidently the possibility was not even considered.

I tell this story against my client to underscore the difficulty for him to be recognized as a potential victim of trafficking. The claim in law is not contentious. The authorities, the CPS, police and the courts should have been alert to the possibility that any young person suspected of having committed an offence of this kind might be a victim of trafficking, given that as a child the test is not, whether he was forced or coerced into robbing the store, but whether his adult companions recruited, transported or harboured him for that purpose.

CCTV caught two of the men on the eve of the robbery driving the route with the 16-year-old travelling in the near side rear passenger seat. If school was in Eltham, here he was – out of area – in the company of adults, one a convicted drug dealer, the other a convicted jewel thief.

Once there is a credible suspicion of trafficking, a protective duty is owed to both trafficking victims and the potential victims of trafficking alike under Article 4 of the Convention. It works like this.

Given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, the decision to prosecute a potential victim of trafficking should only be taken once a trafficking assessment has been made. This is particularly important in the case of children, where the outcome of the assessment will potentially exonerate the individual of offences for which he or she was trafficked as a child. It is not hard to see why in this situation a trafficking assessment is treated as a fundamental aspect of the defence, going to the fairness of the criminal proceedings as a whole.

The only domestic cure for a failure to carry out an assessment, in circumstances where the potential victim of trafficking was prevented from securing evidence which may have constituted a fundamental aspect of his or her defence, is for the Court of Appeal to quash the conviction. Thus, we arrive at an impasse with the positions of the European Court and the Court of Appeal seemingly poles apart.

At the European level a potential victim of trafficking must be exonerated if the court cannot exclude the possibility that a timely assessment at an investigative stage, could have concluded that the applicant was in fact a child victim of trafficking: VCL and AN v UK, Applications nos. 77587/12 and 74603/12, (16 February 2021). In other words, if it is impossible now to establish the facts for the lack of a prompt referral, the applicant must have the benefit of the doubt and the trafficking claim must be taken at its highest.

In the Court of Appeal meanwhile the opposite applies and if some rational justification for the prosecution can be found in the public interest, then the conviction is retained: R v Henkoma [2023] EWCA Crim 808. In other words, if, after taking the claims of child trafficking at their highest, the CPS continues to be of the view that the offending warrants prosecution, the Court of Appeal won’t interfere.

Returning to the decision in Begum, applying the threshold test of credible suspicion SIAC found that Begum was likely trafficked as a child to Syria for the purposes of criminal or sexual exploitation. Accordingly, one might be forgiven for thinking that she was owed a protective duty under Article 4 as a putative victim.

Thus, any figurative prosecution against her that did not first determine whether she was in fact a victim of trafficking would violate both Articles 4 and 6 ECHR. In the view of the European Court, “It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in the future.”

In the context of Article 4, however, the Court of Appeal decided in Begum that the duty to determine whether a potential victim of trafficking is in fact an actual victim of trafficking does not arise as a free-standing obligation but only if linked to the investigation of possible criminal offences.

Again, one might be forgiven for thinking that if the authorities ought to have been aware that Begum was about to be trafficked abroad for the purposes of criminal or sexual exploitation in the 3 months before February 2015, then as a 15-year-old she should have been promptly referred as a potential victim of trafficking with a view to preventing her actual trafficking.

If the approach at European level were adopted in Begum’s case, then the failure to refer her as a child before she travelled means the threat she posed to UK national security has to be assessed as if she were an actual victim of trafficking, taking her case at its highest, the uncertainty over whether she was or not is resolved in her favour and against the government. The Court of Appeal, however, took the different view that the uncertainty over past events and whether Begum was trafficked, meant precisely the opposite that the Secretary of State was not precluded by any previous wrong from treating Begum as a responsible actor even as a child.