By Felicity Gerry QC*
The Kim Jong-nam assassination at Kuala Lumpur International Airport, Malaysia, on 13 Feb 2017 raises the need for reconsidering the laws and framework to deal with human trafficking.
Australia has criminal laws to prosecute human traffickers and policy to protect human trafficking victims – but nothing to protect human trafficking victims who are coerced, deceived or otherwise exploited into committing crime.
The Foreign Affairs and Aid Sub-Committee of the Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade has commenced an inquiry into whether Australia should adopt national legislation to combat modern slavery, comparable to the United Kingdom’s Modern Slavery Act 2015. Submissions are due by 28 April April. Website: http://tinyurl.com/z9w29ju
Australia has an opportunity to create comprehensive legislation far better than the UK Modern Slavery Act which limits protection to certain offences and creates no similar protection for those affected by domestic coercion. The UK Act creates no framework for appeals and no investigatory system for defendants or those who wish to appeal as their status as a human trafficking victim was not dealt with at trial.
By contrast, Indonesia has mandatory protection for human trafficking victims and it is this legislation that was instrumental in securing a temporary reprieve for Mary Jane Velsoso who was on death row with Australians Chan and Sukumaran (as featured in ABC’s Foreign Correspondent here http://www.abc.net.au/foreign/content/2015/s4269268.htm )
These issues are brought into focus by the assassination this month of the half-brother of North Korean leader Kim Jong Un at Malaysia airport by women squirting poisoned pens. News items suggest they thought they were part of a prank, were paid a limited fee and may have been from such a disadvantaged background that they were exploited.
This raises issues of substantive law around their intention to kill when they committed the assault and any operative deception might be relevant to those issues.
It is also important is to consider the effect of the UN human trafficking protocol which defines trafficking to include
the ….recruitment of persons…by means of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation….
Trafficking in human beings for the purpose of criminal exploitation is an increasingly significant phenomenon with victims being exploited through a variety of criminal activities. UN Guiding principles are that trafficked victims who commit crime should not be prosecuted or, if they are, should not be punished.
Malaysia’s 2007 Anti-Trafficking in Persons Act prohibits all forms of human trafficking and the government has made some efforts to protect victims, including providing trafficking victims immunity from immigration offenses and raising public awareness. Whether there is protection for those committing assault resulting in death is not so clear.
Some allowed, some not
The issue is topical in the UK since on 9 February 2017 (four days before the assassination) the Court of Appeal of England and Wales considered conjoined appeals and applications (R v VSJ 2017 EWCA Crim 36) by several appellants who appealed out of time on the basis that they should never have been prosecuted for drug trafficking because they were victims of human trafficking. The Modern Slavery Act did not apply. Some appeals were allowed and some were not.
The willingness of the Appeal court to entertain post-conviction appeals is good. The approach was essentially to consider whether, had the full facts been known, there would have been a decision not to prosecute on the basis that it would not have been in the public interest to charge a human trafficking victim who committed the crime. Those appeals that were successful saw convictions quashed effectively as a form of abuse of process where the available evidence was credible.
However, the court refused to develop the common law on duress and the prosecution, responding to these appeals, failed to concede any of the cases, many of which depended on the appellant’s account as there is no system post-conviction for investigating nationally and transnationally.
In addition, the UK judgment maintained draconian sentencing in some of the appeals without apparently considering the gender issues and appeared to suggest that a man of 40 was unlikely to be trafficked, which research shows is not correct.
In the context of killing, more importantly the court suggested (and counsel apparently conceded) that there may be some crimes that will always be too serious to engage in human trafficking defences. Since these were drugs cases, the implication is that a human trafficking victim would be denied protection where there was a killing.
This is clearly erroneous. In international law child soldiers are not prosecuted – and ‘following orders’ can be recognised in sentencing – so there is no circumstance in which it is inappropriate to consider duress or coercion or even deception in the context of non-prosecution or non-punishment.
Rather than consider creating DPP guidance or the role that abuse of process can play or choosing to follow the limited scope of The Modern Slavery Act, Australia (through the parliamentary inquiry) has an opportunity to create a transnational human trafficking framework for investigation at any stage and mandatory criteria to apply to decisions not to prosecute or punish victims of human trafficking who commit crime.
* Felicity Gerry QC is admitted in England and Australia and has had ad hoc admission in Hong Kong and Gibraltar. She specializes in serious and complex crime, often with an international element. She led the defence team in R v Jogee, the ground breaking appeal in the UK Supreme Court which corrected the law on complicity and held that the form of accessorial liability known as ‘joint enterprise’ was an erroneous tangent of law and the wrongly decided Chan Kam-shing (Hong Kong) 2016. She was Solicitors Journal Legal Personality of the Year for 2016. In 2014 she assisted lawyers for Filipina Mary Jane Veloso who was temporarily reprieved from execution in Indonesia after raising her status as a victim of human trafficking.
Felicity is Adjunct Fellow at Western Sydney University where she lectures in Terrorism, Cybercrime and Sexual Offending and also a Senior Lecturer at Charles Darwin University where she leads an Indigenous justice Exoneration Project. She researches on women & law, technology & law and reforming justice systems. She has recently published three chapters in Human Trafficking: Emerging Legal Issues and Applications (2017) on the Mary Jane Veloso Case, Using Digital Technologies to Combat Human Trafficking: Privacy Implications and Gender Issues in Human Trafficking: Empowering Women and Girls Through Awareness and Law. She is a member of Civil Liberties Australia.
This article is taken in part from a lecture Felicity is due to deliver in Hong
Kong in March, and a similar blog in Criminal Law and Justice Weekly.
Felicity Gerry QC email@example.com