Law fails to comply with EU trafficking directive, rules High Court

Woman facing criminal prosection took case claiming State failed to recognise she was a victim of trafficking

Ms Justice Iseult O’Malley in the High Court ruled that the mechanism in Ireland to determine if a suspect was a victim of trafficking was inadequate to meet obligations under an EU directive.

Ms Justice Iseult O’Malley in the High Court ruled that the mechanism in Ireland to determine if a suspect was a victim of trafficking was inadequate to meet obligations under an EU directive.

 

A High Court judge has said Ireland has failed to adequately comply with its obligations under EU law towards victims of human trafficking.

An EU directive relating to victims of human trafficking has not been properly transposed into Irish law, Ms Justice Iseult O’Malley found in her judgment on an action by a Vietnamese woman allegedly found locked inside a cannabis growhouse in Dublin.

The woman is facing a criminal prosecution and brought her High Court action arising from the State’s refusal to grant her a declaration she is the victim of human trafficking. Ms Justice O’Malley ruled the mechanism used in Ireland to recognise whether a person suspected of committing a crime was a victim of human trafficking was inadequate to meet the State’s obligations under an EU directive concerning the rights of human trafficking victims.

Rules or protocols

The Irish mechanism did not deal clearly with the interaction between the application for recognition as a trafficking victim and the criminal investigation into the woman’s alleged activities, the judge said.

Rules or protocols, “if not legislation”, are necessary to establish what is to be done in circumstances where the person claiming to be a victim is also suspected of criminal activity, she said.

Following the judgment, the woman’s solicitor, Gareth Noble, said he intends to ask the Director of Public Prosecutions not to proceed with the prosecution of his client who is due before Dublin Circuit Criminal Court next month.

Among the factors he would be asking the DPP to consider is that the woman has now spent two and a half years in prison, he added.

The woman, who cannot be named for legal reasons, was discovered by gardaí in 2012 after they raided a suspected growhouse in a north Dublin industrial estate as part of a series of raids in a nationwide operation. Cannabis worth some €1 million was found at the premises.

The woman was later charged with unlawful possession of cannabis and having it for the purposes of sale or supply. She has been remanded in custody at the Dóchas Women’s Centre since her arrest.

The woman, who at the time of her arrest could not speak English, claimed she was a trafficking victim and should not be prosecuted. In September 2013, gardaí said there was insufficient evidence to conclude she is a trafficking victim.

Fair procedures

In proceedings against the Chief Superintendent of the Garda National Immigration Bureau (GNIB), the DPP, Ireland and the Attorney General, the woman said the refusal breached her rights, including her rights to fair procedures.

She claimed her rights under the relevant EU directive were breached and the directive has not been properly transposed into Irish law.

The respondents argued the directive had been adequately transposed by means of administrative arrangements. It was also claimed the application was misconceived and the woman had been untruthful or vague when asked to give certain information.

In her judgment, Ms Justice O’Malley said, under the EU directive, the State has an obligation to have in place a mechanism to ensure prosecuting authorities have a discretion not to punish or prosecute victims of trafficking suspected of committing a criminal offence. It must also have a mechanism to identify such victims accused of criminality.

The judge said this case demonstrated a number of fundamental difficulties with the current mechanism, including a lack of clarity as to where the onus of proof lay concerning an application for recognition as a victim of trafficking.

She adjourned the matter to later this month when she will hear further submissions arising out of her decision.