Criminal Responsibility of Trafficked Persons

AuthorThe Hon Lord Ericht
PositionCourt Of Session And High Court Of Justiciary, Scotland
Pages44-56
IRISH JUDICIAL STUDIES JOURNAL
[2019] Irish Judicial Studies Journal Vol 3(2)
44
CRIMINAL RESPONSIBILITY OF TRAFFICKED
PERSONS
Author: The Hon Lord Ericht, Court Of Session And High Court Of Justiciary, Scotland
Introduction
The victims of trafficking often commit crimes. Some of these are committed in the course
of being trafficked, for example crossing borders illegally or having false identity papers.
Other crimes are committed as a consequence of being trafficked: the activities which a
victim is forced to do on arrival at the destination, such as picking pockets, running
brothels or cultivating cannabis.
Should the victims of trafficking be criminally responsible for crimes? Should they be
prosecuted? Should they be convicted? Should their sentences be reduced? Who needs to
be protected: the trafficked person who is the victim of traffickers, or the general public
who are the victims of the trafficked person? Should a trafficked person who murders be
treated differently from a trafficked person who picks a pocket?
Many legal systems provide that a person who is compelled to commit a crime is not
criminally liable. The precise details vary from country to country. For example, in English
law the defence of duress is narrowly defined to apply to threats of death and bodily harm
and is not available where the accused is charged with murder.
1
In Scottish law the defence
of coercion was traditionally understood as applying to acting under immediate danger of
death or serious bodily harm.
2
Are victims of trafficking sufficiently protected by existing
general laws about crimes committed under compulsion, or should there be special laws
specifically to protect trafficking victims?
These are the sorts of questions which have been asked increasingly in recent years as
awareness has risen about trafficking and what a serious problem it is both internationally
and nationally.
3
International Obligations
In 2000, the United Nations adopted the Palermo protocol’, or to give it its full name, the
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime.
4
1
Karl Laird, ‘Evaluating the relationship between section 45 of the Modern Slavery Act 2015 and the defence of duress:
an opportunity missed?(2016) Criminal Law Review 395; Susan Edwards Coercion and Compulsion Re-imagining
Crimes and Defences(2016) Criminal Law Review 876.
2
David Hume, Commentaries on the Law of Scotland (1797) i.53; Thomson v HMA 1983 JC 69.
3
See for example Ryszard Wilson Piotrowicz and Liliana Sorrento, Human Trafficking and the Emergence of the Non-
Punishment Principle(2016) 16(4) Human Rights Law Review 669; Andreas Schloenhardt and Rebekkah Markey-Towler,
Non-Criminalisation of Victims of Trafficking in Persons Principles, Promises and Perspectives’ (2016) 4(1) Groningen
Journal of International Law 10, 21.
4
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25
December 2003) 2237 UNTS 319 (Palermo Protocol).

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