Facts:
The applicant, a Chinese national, had been found in a premises in Dublin which had been turned into a cannabis growhouse. He was charged with various drugs offences under the Misuse of Drugs Act 1977, as amended. He pleaded guilty to one offence and was in custody, awaiting trial, on the others. He claimed that his detention was unlawful and that he ought not to be prosecuted as he was a victim of human trafficking, relying on Directive 2011/36/EU and, in particular, Article 8 thereof, which provided:-
“Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that the competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of any of the acts referred to in Article 2”.
He accordingly sought an inquiry by the High Court into the legality of his detention under Article 40.4 of the Constitution. The applicant had no passport or identity documents. His claim was that his father ended up in financial difficulty in China, and that he had been forced to travel to Ireland to work and repay it. The trial judge considered his account of his travel to Ireland to be implausible in some respects, noting that he could not give any specific details at all of how or when he arrived in it. He said that his traffickers made him work in a number of Chinese restaurants. However, his claim to have been deprived of his liberty by them was inconsistent with pictures found on a phone in his possession, which depicted various locations throughout Ireland and indicated he had been able to travel around it freely for a number of months. He then said that he accepted a job in a premises in Dublin city watering plants, which turned out to be cannabis plants. His claim that he thought they were innocuous was held to lack credibility by the trial judge, bearing in mind the clandestine nature of his activities and his guilty plea. He claimed to have been held for several weeks in the growhouse.
During the course of an investigation into the complaint of human trafficking made by him, the Gardaí discovered that the lessee of the premises where the applicant was found, also a Chinese national albeit one lawfully in Ireland, had in her possession a number of passports of Chinese nationals. However, the investigation was unable to conclude, on the basis of the evidence, that the applicant had been trafficked into Ireland.
The High Court held that he had been lawfully detained.
Reasoning:
The High Court began by considering relevant legislation. It noted that the Criminal Justice (Human Trafficking) Act 2008 (“the Act of 2008”) gave effect to a Council Framework Decision of the 19th July, 2002 on human trafficking, which was replaced by the Directive of 2011, which was to transposed by the 6th April, 2013 at the latest. It noted that the main effect of the Act of 2008 was to create specific criminal offences penalising persons who engaged in the trafficking of adults and children and that it did not, as such, confer any rights or entitlements on any trafficked person. There was, however, an administrative notice entitled “Administrative Immigration Arrangements for the Protection of Victims of Human Trafficking” from 2008 which did confer certain benefits on foreign nationals in respect of whom there were reasonable grounds for suspecting that they were victims of human trafficking. The court also considered United States and European Court of Human Rights case law on the topic of slavery and involuntary servitude, including the decision of the latter in Siliadin v France [2005] ECHR 545, where it was held that a Togolese national was in a position of servitude, but not slavery, in France.
The court accepted the assessment of the Gardaí that the applicant had not been trafficked into the State. Drawing on the decision in Siliadin it held, however, that he had been held in conditions of servitude within the meaning of the definition of “labour exploitation” in s. 1 of the Act of 2008. It noted that he was a vulnerable individual who could not speak or otherwise communicate in English, had been the subject of an extreme deprivation of liberty, and had been subjected to a real threat of violence from the criminals responsible for the growhouse. The fact that he had consented to work in it was, he held, irrelevant.
It then turned to the applicant’s claim that he should not be prosecuted by virtue of Article 8 of the Directive. It held that Article 8 imposed no direct obligation in that regard on the prosecution. It permitted the relevant prosecuting authorities not to prosecute the victims of trafficking where the crimes which they had committed were the direct consequence of their exploitation by traffickers. The crucial matter was that, for Article 8 to apply, the applicant would have to be a victim of trafficking and that there would have to be a real and substantial connection between his status as a person who had been trafficked and the crimes which had actually been committed. The court stated that if he had been trafficked into the State and coerced to work in the growhouse, then serious consideration would have to have been given by the Director of Public Prosecutions as to whether he should have been prosecuted at all.
However, the court was not satisfied that he had been trafficked into the State, there being no independent evidence to support his testimony in that regard. He had no evidence of identity and could not say how or when he arrived here. A thorough Garda investigation had been unable to advance the matter any further. The fact that the lessee of the premises held a number of Chinese passports did not assist him, the evidence which had been gathered in the course of the Garda investigation exonerating her of any role in trafficking. The fact that the applicant had been able to travel around the State for a number of months was critical independent and objective evidence tending to suggest that he had not been trafficked.
The court therefore held on the basis of the available evidence that the applicant had not been trafficked into the State and that it followed that any offences committed by him in the growhouse had not been as a “direct consequence” of being trafficked, the essential requirement of Article 8 of the Directive of 2011. He therefore had no locus standi to challenge the manner in which the Directive had been transposed into Irish law.
Decision:
The High Court therefore concluded that the applicant was in lawful detention.
