SF, R (on the application of) v The Secretary of State for the Home Department

S F (“the Claimant”), who is a national of St Lucia and who was born in1994, seeks to judicially review the decisions of the Secretary of State for Home Department made by its Competent Authority (“the CA”) for the identification of victims of trafficking under the National Referral Mechanism which concluded that the Claimant was not a victim of trafficking. A decision by the CA that an individual is not a victim of trafficking prevents the individual concerned from invoking the rights, which accrue to victims of trafficking under the Council of Europe Convention on Action Against Trafficking in Human Beings (“CAT”).

The decision of the CA is of critical importance as it not only affects the position of the victim of trafficking, but it also affects the ability of the State to mount effective prosecutions against traffickers. A person held to have been trafficked will thereby become entitled to a series of rights under CAT and these include the right to assistance to aid recovery (Article 12); to a residence permit in the circumstances laid down in Article 14; to information about and access to compensation procedures (Article 15); for any return to her country to be carried out with “ due regard for the rights, safety and dignity of that person” (Article 16); and of particular importance in the present case (Footnote: ¹), a right not to be prosecuted for offences directly connected with her experience of being trafficked ( Article 28). As the Claimant has been held not to be trafficked, she will not be entitled to any of the benefits and is now at great risk of being prosecuted and then sent back to St Lucia.

The decision that the Claimant was not a victim of trafficking was initially made on 3 December 2013, but it was reconsidered and then upheld in light of pre-action correspondence on 20 January 2014 and on 6 March 2014. After the present claim for judicial review was issued, the CA agreed to reconsider the decision, and on 3 June 2014, she issued a new decision (“the June 2014 decision”) maintaining that the Claimant is not a victim of trafficking. I will use the term the June 2014 decision to take account of the responses of the CA to representations by Ms Swate Pande of the NSPCC to persuade the CA to reverse it. It is made clear in the Claimant’s skeleton arguments that the June 2014 decision is “the primary target of the claim”.

The June 2014 decision was made on behalf of the CA by Ms Hazel Stancliffe, the Senior Decision Maker/Technical Specialist at the National Referral Mechanism Hub of the Asylum Casework Directorate within UK Visas and Immigration Department at the Home Office, and also by Ms Sharon Gallagher who was the Operational/Technical Specialist Lead at NRM Hub. It is the primary target of this claim, although the CA has subsequently considered further representations made on the Claimant’s behalf by the NSPCC. Ms Stancliffe on behalf of the CA responded to those representations on 29 August 2014 and on 3 February 2015. In addition, after permission was granted, Ms Stancliffe on behalf of the CA made a witness statement on 3 June 2015, which explains how the June 2014 decision came to be made.

There is a dispute as to how this Court should approach this challenge to the June 2014 decision. In essence, the case for the Claimant presented by Ms Phillippa Kaufmann QC and Ms Alison Pickup is first, that the CA’s decisions that the Claimant was not trafficked are irrational, second, that they are based on errors of law, and third, that in Lord Reed’s words in Pham v Secretary of State for Home Department [2015] UKSC 19; [2015] 1 WLR 1591 [114], “there should be a searching review of the primary decision maker’s evaluation of the evidence” by this Court.

Thus the case for the Claimant is that heightened or more rigorous scrutiny should be applied and that there is in the words of Carnwath LJ in R(YH) v Secretary of State [2010] EWCA Civ 116 [24]:

“the need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”.

The CA rejected the Claimant’s case that she had been trafficked because of her “ adverse credibility” and the focus of the Claimant’s case has been that this decision should be quashed. Ms Julie Anderson, counsel for the Secretary of State, disagrees and she contends that it is appropriate to apply a standard Wednesbury approach. She proceeds to submit that the Court must identify an underlying error of law or objective irrationality in order to grant relief but there is no such error of law or irrationality. Ms Anderson stresses that the Court should be concerned with substance and not with semantics.

A fundamental issue relates to the way in which the June 2014 decision dealt with the alleged inconsistencies in the Claimant’s account bearing in mind that she was a child who was alleged to have been trafficked. The case for the Claimant is that the decision must be quashed for many reasons including that:

The case for the Secretary of State is that it was up to the decision maker to decide what weight to attach to all the evidence and that in any event for the June 2014 decision to be quashed, there had to be an underlying error of law or objective irrationality, but none existed. Further, there was nothing Wednesbury irrational about the decision refusing to find that the Claimant had been a victim of trafficking.

I am grateful for the assistance of counsel. I became ill in the late afternoon of the day of the hearing towards the end of Ms Anderson’s submission and Counsel then helpfully made their remaining submissions in writing. After the oral hearing, Counsel made helpful additional comments in the light of the decision of Elisabeth Laing J in R (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin), the transcript of which only became available over a month after the oral hearing was completed and that has delayed the delivery of this judgment.

The stated purposes of CAT are:

The Explanatory Report to CAT records at paragraph 57 that:

“Two of the main aims of this Convention, as set out in Article 1, are the protection of the rights of trafficked persons and the prosecution of those responsible for trafficking. The drafters recognized that the two are related to each other”.

In Rantsev v Cyprus & Russia (2010) 51 EHRR 1, the Strasbourg Court, having held that trafficking in human beings fell within the scope of Article 4 ECHR, observed at paragraph 285 that:

“In order to comply with [the positive obligation to prevent trafficking], Member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers. It is clear from the provisions of these two instruments that the contracting states, including almost all of the Member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking. Accordingly, the duty to penalise and prosecute trafficking is only one aspect of Member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under art.4 must be considered within this broader context”.

Article 4(a) defines “trafficking in human beings” as:

‘’Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the 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”

As the Claimant was a “child” at the time when she was alleged to have been trafficked, Article 4(c) is relevant and it makes it clear that:

“The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article”.

The Explanatory Report explains that:

“74.

In the definition, trafficking in human beings consists in a combination of three basic components, each to be found in a list given in the definition:

–the action of: “recruitment, transportation, transfer, harbouring or receipt of persons”;

–by means of: “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the 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, which includes “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (Footnote: ⁴)

75.

Trafficking in human beings is a combination of these constituents and not the constituents taken in isolation. For instance, “harbouring” of persons (action) involving the “threat or use of force” (means) for “forced labour” (purpose) is conduct that is to be treated as trafficking in human beings. Similarly, recruitment of persons (action) by deceit (means) for exploitation of prostitution (purpose).

76.

For there to be trafficking in human beings ingredients from each of the three categories (action, means, purpose) must be present together. There is, however, an exception regarding children: under Article 4(c) recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is to be regarded as trafficking in human beings even if it does not involve any of the means listed in Article 4(a). Under Article 4(d) the word “child” means any person under 18 years of age”.

Article 10 of CAT requires States to ensure that steps are taken to identify victims of trafficking, including by securing that suitably trained and qualified personnel are available, that the different organisations collaborate with each other, and that the necessary legislative and other measures are adopted to enable the identification of victims. In relation to Article 10, the Explanatory Memorandum states (so far as material and with emphasis added) that:

“127.

To protect and assist trafficking victims it is of paramount importance to identify them correctly. Article 10 seeks to allow such identification so that victims can be given the benefit of the measures provided for in Chapter III. Identification of victims is crucial, is often tricky and necessitates detailed enquiries. Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights and the prosecution to be denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings. Through the identification process, competent authorities seek and evaluate different circumstances, according to which they can consider a person to be a victim of trafficking”.

The obligation to proactively identify victims of trafficking is an aspect of the obligations arising under Article 4, ECHR: Rantsev v Cyprus & Russia [2010] 51 EHRR 1, paragraph 296. Moreover as was explained by Ms Helen Mountfield QC (sitting as a Deputy High Court Judge) in R (HAM) v SSHD [2015] EWHC 1725 (Admin) [53]:

“Since the UK Government has announced that its policy is to give effect to its obligations under the Trafficking Convention, that has consequences in domestic administrative law. Failure to apply the provisions of the Convention may give rise to a successful claim for judicial review: not because the treaty has any direct effect (because it does not), but because the Government has then failed to apply its own published policy (see R(Y) v SSHD [2012] EWHC 1075 (Admin) at [40]). Thus, the Competent Authority should be taken to have intended to protect the victim's rights, combat trafficking and promote international co-operation (the objectives identified in the Convention) and to promote a human rights based approach.”

Article 12 of CAT sets out the assistance that should be given to “assist victims [of trafficking] in their physical, psychological and social recovery”.

The structure adopted in the UK for the identification of victims of trafficking in accordance with these obligations is known as the “National Referral Mechanism”. Under that regime, those who have reason to suspect that an individual may be a victim of trafficking may refer a person into the National Referral Mechanism for a decision by the CA.

An issue on this application is whether the Secretary of State and the CA complied with the Guidance. One of the critical features of the Guidance is that it sets out not merely myths about trafficking, but that it also provides very important guidance as to how to approach the evidence of trafficked people and very significantly why their evidence may be inconsistent or disclosed at a late stage as a result of the trauma of being trafficked but nevertheless is true.

Warnings as to why potential victims of trafficking may be inconsistent or late in adducing evidence

A problem facing those having to decide whether a person has been trafficked is that people who have been trafficked are likely to have been traumatized and shocked by their experience. Indeed the Guidance warns those who have to decide if a person who claims to have been trafficked and who has given evidence that is inconsistent, lacking details or given late that may have valid excuses for this as a result of that person’s trauma of trafficking. In consequence, these matters should not lead to the evidence of the person concerned being disbelieved. Those provisions include those stating that:

(a)

“Due to the trauma of trafficking, there may be valid reason why a potential victim's account is inconsistent and lacks sufficient detail”.

(b)

“When you assess the credibility of a claim, there may be mitigating reasons why a potential victim of trafficking is incoherent, inconsistent or delays giving details of material facts. You must take these reasons into account when considering the credibility of a claim. Such factors may include, but are not limited to the following:

-trauma (mental, psychological, or emotional)

-inability to express themselves clearly

-mistrust of authorities

-feelings of shame

- painful memories (particularly those of a sexual nature)”.

(c)

“Children may be unable to disclose or give a consistent credible account due to such factors as:

-their age

-their on-going nature of abuse throughout childhood, and/or

-fear of traffickers, violence or witchcraft.

(d)

“Delayed disclosure

A key symptom of post-traumatic stress is avoidance of trauma triggers, or those that cause frightening memories, flashbacks or other unpleasant physical and psychological experiences. Because of these symptoms a person may be unable to fully explain their experience until they have achieved a minimum level of psychological stability. You must not view a delay in disclosing of facts as necessarily manipulative or untrue. In any cases it is the result of an effective recovery period and the establishment of trust with the person they disclose the information to”.

(e)

"You should assess the material facts of past and present events (material facts being those which are serious and significant in nature) which may indicate that a person is a victim of trafficking”.

Relevance of Criminal Proceedings to CA’s Trafficking Inquiry

The CA’s inquiry being carried out to determine whether a person has been trafficked is in the words of the Guidance “independent of a criminal proceeding against those responsible for the trafficking”.

In addition, paragraph 134 of the Explanatory Report to CAT provides that:

“The identification process is independent of any criminal proceedings against those responsible for trafficking. A criminal conviction is therefore unnecessary for either starting or completing the identification process”.

The Claimant was born on 15 February 1994 in St Lucia where she was subject to physical and sexual abuse. After her parents’ marriage broke up, she lived with her mother until her family home was destroyed by the devastating hurricane which hit St Lucia in October 2010 and her family members were then scattered around St Lucia.

A woman called BX approached the Claimant when she was about 15 years old and she arranged for the Claimant to be sexually exploited mainly by French men until the Claimant left St Lucia in 2011. BX received payments for these sexual services rendered by the Claimant and she gave a small proportion of these payments to the Claimant.

In 2011, when the Claimant was 17, she was approached in St Lucia by a man called B and I will return later to consider how she met him. B had begun a relationship with the Claimant’s cousin N. He told N and the Claimant that he could arrange for them to come to live in the UK and to work in hairdressing salon. N and her very young daughter then travelled to the UK in April 2011 and the Claimant was expecting to travel later.

The Claimant was persuaded by B to come to the United Kingdom with the promise of work in a hairdressing salon, but he did not tell the Claimant that his relationship with N had ended. The Claimant agreed to go as she thought that she could support her family by working in the United Kingdom.

B made all the arrangements for the Claimant’s journey to the United Kingdom including purchasing and paying for her flight and the Claimant has never discussed with B repaying him for the cost of the air ticket. The Claimant was emailed the details of her air ticket a few days before travelling to England on 31 July 2011 on her own passport. B told the Claimant that she was to tell the immigration authorities that she was coming for her great aunt’s 60^th birthday and he gave her an address at which she should say she would be staying.

The Claimant arrived in England on 1 August 2011 and the immigration officer spoke to B on the phone after which the immigration officer agreed to give the Claimant leave to enter the United Kingdom for six months as a visitor. She was met on arrival in the United Kingdom by B who took her passport and he has retained it. The Claimant was told that B and N had broken up.

B took the Claimant to his house where she stayed, and according to the Claimant, he would pressure her into having sex with him.

Later, B took the Claimant to a house in Forest Gate where he left her with a man called R who she was told would be her new boy friend. The Claimant believes B had sold the Claimant to R as B left the Claimant with him from early morning until late at night. R forced the Claimant to have sex with him and he controlled her movements when she was at his house.

After about a week, the Claimant escaped from B and R with the assistance of her cousin N. The Claimant went to live with N and her boy friend NX who paid the rent. B threatened the Claimant and N by phone and by contact made through Facebook. The Claimant changed her telephone number as she and N feared that B would find them. NX’s cousin, P, then arranged for the Claimant, N and her daughter to move to a property on Sutton Road which was owned by a man known to the Claimant as “J”, who was an associate of P. According to the Claimant, he has been identified as a registered sex offender called Carl George Scott. The Claimant and N were sexually exploited while living in Sutton Road as the Claimant had to have sex with P.

In September 2011, the Claimant met Christian Ehireman, who is referred to as “Sam”. He bought items for the Claimant in return for sexual favours. On 17 September 2011, which was just over 7 weeks after the Claimant arrived in this country, N filmed the Claimant having sex with Christian while N’s very young daughter was in the room. The footage is the subject of criminal charges that the Claimant and Christian face of engaging in sexual activity in the presence of a minor

The Claimant was placed in the care of the London Borough of Newham Social Services as a child in need. The Metropolitan Police made a referral of the Claimant to the National Referral Mechanism on 17 October 2011 when she was 17 years old. According to Ms Carly Adams of the NSPCC, the referral forms to the National Referral Mechanism stated that the Claimant was living in a property, which the police believed was being used as a brothel or for exploitation and which was confirmed by reports received from neighbours. It was also stated that this house was believed to belong to a registered sex offender.

According to the Competent Authority, the referral identified the presence of indicators of trafficking, which were first, the claims by the Claimant to have been sexually exploited; second, the Claimant having a significantly older boy friend; third, evidence of alcohol, drug or substance abuse; fourth, evidence of the Claimant being sexually active; and finally the Claimant having no passport or means of identity.

A positive reasonable grounds decision was made in the Claimant’s case on 24 October 2011 by UK Human Trafficking Centre which then referred the Claimant to (what was then) the UK Border Agency CA to make a conclusive decision as to whether she is a victim of trafficking. At the “conclusive decision” stage, the question to be decided was whether the CA was satisfied on the balance of probabilities that a person concerned was a victim of trafficking. As I have explained, a negative decision was made in respect of the Claimant and that is what is being challenged in these proceedings.

After coming to the attention of the Police, the Claimant made a belated claim for asylum on 24 November 2011. By a letter dated 17 March 2014, her claim was refused as it was decided that she had not shown a well-founded fear of persecution. That decision was withdrawn on 2 May 2014. On 21 February 2012 and on 16 April 2012, the Claimant was interviewed by the police under caution.

In June 2012, the Claimant was charged with the offence of engaging in sexual activity in the presence of a child who was N’s daughter. She appeared before the Magistrate’s Court on 21 August 2012 and there was a preliminary hearing on 12 November 2012 before the Crown Court.

At that hearing, N pleaded guilty to child cruelty and her daughter is now in care. Christian pleaded not guilty to the offence of engaging in sexual activity before a child and the Claimant’s case was adjourned to enable representations to be made to the prosecution on her behalf.

On 28 November 2012, Ms Swati Pande a social worker for the NSPCC produced a report, but this was not served on the CA until 6 January 2014. It concluded that the Claimant was a child victim of trafficking.

On 14 January 2013, the prosecution indicated that it would proceed with the charge against the Claimant to which she had pleaded not guilty.

On 9 July 2013, Ms Carly Adams of the NSPCC produced a report in which she explained that she had been in regular contact with the Claimant mostly on a weekly basis since January 2012 and that she had read most of the documents disclosed to her since January 2012. She concluded that the Claimant:

“…is a young person who was trafficked to the UK for the purposes of sexual exploitation when she was a child.”

The Claimant’s criminal trial was listed for trial on 2 September 2013, but it was re-fixed for 27 January 2014. That hearing was vacated so the Claimant could first bring this judicial review application. The Claimant’s trial is fixed for early October 2015 pending the determination of this application. I assume that the Crown Court will have to consider adjourning this hearing in the light of this judgment quashing the CA’s decision that the Claimant was not a victim of trafficking and Article 28 of CAT, which was referred to in paragraph 2 above.

On 3 December 2013, the CA determined that on the balance of probabilities the Claimant was not a victim of trafficking. That decision was challenged in a letter from the Claimant’s solicitors dated 6 January 2014 and which enclosed the report prepared by Ms Swati Pande, NSPCC dated 28 November 2012 and an undated report prepared by Mike Hands of the Centre for Child and Adult Safeguarding.

The case was reviewed in the light of the representations and reports provided on 6 January 2014, and a further decision was provided on 20 January 2014. That decision highlighted the differences in the accounts considered by the different individuals who had written reports in support of the Claimant and the accounts given to the CA and in the belated asylum claim.

On 23 January 2014, a written request to the CA was made by the Claimant’s solicitors seeking a reconsideration of that decision and the report of Carly Adams of the NSPCC dated 9 July 2013 was provided on this occasion. On 28 February 2014, a letter requesting a further consideration was submitted, with a Psychological report from Dr Eileen Walsh enclosed (“the Psychological report”) on this occasion.

On 3 March 2014, the present proceedings were lodged challenging the decision on 3 December 2013. On 6 March 2014 the case was reconsidered again in the light of all materials then available and a further decision was made that the Claimant was not a victim of trafficking.

Amended grounds dated 16 April 2014 were filed challenging the decision dated 6 March 2014 that the Claimant was not a victim of trafficking. The case was reconsidered and the June 2014 decision was made. As I will explain in paragraphs 74 and 75 below, in the light of further submissions and materials the case was considered again and a fifth decision was made dated 29 August 2014 upholding the June 2014 decision.

The Claimant’s account raised four separate situations of potential trafficking which were first, matters committed by BX in St. Lucia, the second related to the conduct of B who brought the Claimant to the United Kingdom, while the third occurred while the Claimant was staying with P, NX and N in the United Kingdom, and the fourth one was committed by Christian in the United Kingdom.

It was explained that the Claimant’s account of having been trafficked was “not internally consistent”. The June 2014 Decision stated that the Claimant’s account of her family life in St. Lucia, differed significantly from the later information provided by the Psychological report and the Helen Bamber Foundation letter in relation to the treatment she had received from her father and other relatives. The late disclosure of the Claimant’s treatment by her family in the view of the writer of the report was “not deemed detrimental to [the Claimant’s] credibility”.

The June 2014 Decision noted in relation to the trafficking by BX that the Claimant explained first, that she did not initially refer to this in her asylum interview because she did not consider it to be relevant as to who she feared in St Lucia, and second, that it was only after the Claimants’ work with the NSPCC that she understood that BX’s dealings with her constituted exploitation. It is said in the June 2014 report that this incident is referred to in the NSPCC report dated November 2012, but that it was not referred to in the report of 9 July 2013, which was provided by her key support worker, and it referred to further disclosure that the Claimant had made. This is not correct because that report by Ms Adams of NSPCC of 9 July 2013 stated that the Claimant:

“has also described being commercially exploited by an adult female, known to [the Claimant] as [BX], in St Lucia in the year before she came to the U.K. whereby the person arranged for [the Claimant] to have sex with various adult males for financial gain. [The Claimant] reports she received a small percentage of the money which she would give to her mother”.

I will have to return (Footnote: ⁵) to consider the effect on the decision of this error in the June 2014 report. The report of the June 2014 Decision noted that the Psychological Report referred to the Claimant’s treatment by her father, but it does not refer to exploitation by BX specifically and only to exploitation in prostitution as an adolescent. The Psychological Report stipulated at the start that it would only focus on events within the United Kingdom. Thus the writer of the June 2014 Decision considered that aspect of the Claimant’s account to be “internally inconsistent across the supporting documentation and is therefore rejected”.

I do not consider it fair to hold against the Claimant the fact that the Psychological report did not refer to her dealings with BX bearing in mind that the writer asked the Claimant “to focus on specific events related to her reported experiences in the United Kingdom”.

The June 2014 report then considered whether there were any mitigating circumstances in relation to the discrepancies in the Claimant’s account. The Psychological Report stated that the Claimant was asked about a range of common psychological problems and it concluded that the Claimant did not report any psychological difficulties that indicated that she might then currently have had a psychiatric disorder.

This Psychological report and the one from Helen Bamber Foundation found that the Claimant suffered from PTSD which was attributed to her experiences with her family in St. Lucia and her subsequent relationships with men. They both indicated that some discrepancies were likely to occur relating to her ability to recall specific events, but the June 2014 Decision concluded that the inconsistencies identified were “the lack of reporting of an event as opposed to inconsistencies within the details related for events within St. Lucia” and therefore “this is not mitigated for”. I am concerned about this conclusion because as I have explained (Footnote: ⁶), the Guidance points out that “there may be mitigating reason why a trafficking victim delays giving details of material facts” and these provisions were not referred to. I will have to consider the consequences of this in due course.

Moving to incidents two to four, these occurred in this country and they had been reported to the UK police, but according to the June 2014 report, a number of inconsistencies have been disclosed which were “not in their self determinative of the credibility of the account after having taken account of the matters raised in the Psychological report”.

In relation to incident two, which related to trafficking by B, who brought the Claimant to the United Kingdom, the Claimant had originally stated that she had met B in person in St. Lucia before travelling to the United Kingdom. It was said that this account was repeated in the Claimant’s asylum interview and in the NSPCC reports, but this is not correct because in the NSPCC report of Ms Swati Pande dated 28 November 2012, Ms Pande stated that she had spoken to the Claimant “about the false information she gave about meeting B in her home country, [the Claimant] has acknowledged that this is not true”. So the Claimant had admitted at the latest by 28 November 2012 that she had not met B in St Lucia and that her original account was wrong. Ms Pande has also explained that the Claimant was then a “17 year old child , living in a very abusive environment”.

The June 2014 decision letter noted that in her later witness statement dated 29 April 2014, the Claimant had stated that she had not met B in person, but that she had met him through the Internet. According to the June 2014 decision letter, this assertion constituted “a significant departure” from her previous account, but as I have explained, this ignores what the Claimant had said in November 2012. I will return to consider (Footnote: ⁷) this issue.

Further, in her asylum interview the Claimant stated that she had been communicating via Facebook with a person who she believed to be N, but who she later discovered was B, but at a later time the Claimant was stating that the contact she had was on Facebook through the account of N. The writers of the June 2014 decision letter noted the Claimant’s explanation for this discrepancy was that she “thought it would sound stupid to say that I came here only after meeting someone on the Internet’, but it was explained that the Claimant had stuck to her original story which according to the June 2014 decision letter, she may have done so until after Ms Adams’ report of July 2013. The June 2014 decision letter noted that all the information submitted prior to April 2014 indicated that the Claimant had met B in person in St Lucia and that this constituted “a significant inconsistency”. As I have explained, this was incorrect because of Ms Pande’s report to which I referred in paragraph 58 above

It was pointed out in the June 2014 decision letter that this account had been reported to the Metropolitan Police and that their investigation did not support her claims, which were based on information provided by the Claimant. The report stated that the report provided in support of her were “based on information provided by you and as such is not deemed to have been tested and investigated to the extent of a police investigation and as such greater weight is given to the outcome of the police investigation”. So the report concluded that “this aspect of the account was not corroborated to the required standard of proof”. I will have to return (Footnote: ⁸) to consider whether this is a flawed conclusion because of the reference to the need for corroboration.

Moving onto the third incident, which related to events while the Claimant was staying with P, NX and N in the United Kingdom, it was pointed out that the Claimant did not report this to the Metropolitan Police at the time the investigation was undertaken into B or the circumstances of the Claimant’s arrest. The writers of the June 2014 decision letter regarded it as “internally inconsistent” that the Claimant reported two of the three incidents and investigations then took place, yet it was only at the later stage of producing the June 2014 decision that the Claimant contended that she was a victim of crime which linked the two incidents. It was said that the Claimant did not raise other problems on which she seeks to rely until the time of the report of Ms Adams in July 2013 and the Psychology report of February 2014. I have already explained (Footnote: ⁹) that the Guidance does refer to the fact that there may be mitigating and excusable reasons why a potential victim of trafficking delays giving an inconsistent or late account of event

It was noted in the June 2014 report that “there is no corroborative evidence from the police to support this aspect of [the Claimant’s] account”. So that report concluded on this issue that “the decision to take the police investigation no further was given greater weight and therefore that aspect of the account was not supported to the required standard of proof”. I will have to return to consider the reference to the need for corroboration.

Turning to the fourth matter which concerned Christian’s activities, the June 2014 report stated that the Claimant provided “an internally inconsistent account of [her] relationship with Christian”. Furthermore, it was explained that the Claimant made the decision to end the relationship with Christian and that this was accepted by him despite the assertion that he was gaining from the relationship.

It was noted that the NSPCC report by Ms Adams dated July 2013 and the CAS reports show disagreement with the decision of the CPS to prosecute because they thought that the act was not consensual. It was decided to give greater weight to the findings of the police investigation. The CA then explained in the June 2014 decision letter that due to inconsistencies in the claimant’s account, her credibility had been damaged to the extent that her claim to have being trafficked in St Lucia could not be believed and was rejected.

The June 2014 report then went on to consider each of the three basic components for human trafficking namely:

(a)

“an action” – “the Claimant must have been subjected to an act of recruitment/ transportation/ transfer/ harbouring/ receipt”.

(b)

“means” – The Claimant was at all material times under the age of 18 and therefore this requirement did not have to be satisfied as somebody of her age could not give informed consent. Nothing more needs to be said about it.

(c)

“Purpose” – in this case it entails consideration as to whether the Claimant was “recruited/transported/ transferred/harboured/received for the purpose of sexual exploitation”,

Having considered that the “action” requirement in relation to the first incident, namely the recruitment by BX in St. Lucia for the purposes of sexual exploitation, this part of the Claimant’s claim was not accepted in the June 2014 decision letter as being credible due to the internal inconsistencies which had been set out.

In relation to the second incident, it was accepted that the Claimant arrived in the United Kingdom at the instigation of B and therefore she was subject to an act of transportation. So this part of the requirement of “action” was met in relation to this incident.

Further, as the claimant was encountered at the property referred to the third incident to which she had been transported, this part (a) of the definition was met. As to the fourth incident, it was accepted that the Claimant had been recruited by Christian. Therefore part (a) of the definition was met. These findings meant that the decision whether the Claimant was trafficked would depend on whether the “purposes” requirement was satisfied.

As to that requirement of “purpose”, in relation to the first incident (events in St Lucia), it was noted that having worked with her counsellor at the Helen Bamber Foundation and through the support of her key workers at the NSPCC, the Claimant had amended the details of how she had met B and the Claimant’s inconsistent recording of events with BX led to her account being rejected in its entirety. So this requirement could not be satisfied in respect of the first incident.

The June 2014 decision letter noted that the Claimant had submitted a number of supporting reports which are based on information which the Claimant had supplied to the authors relating to the second, third and fourth incidents. It was said that this information had not been tested or investigated by the authors, but that it had been used to support their professional judgment.

These matters had been brought to the attention of the United Kingdom police and:

“subsequent investigations have not supported the opinions raised in the supporting reports submitted. Therefore, there is insufficient evidence taking account of the police investigation to meet part (c) of the definition”.

The conclusion of the report addressed to the Claimant was:

“Based on the information available, it is considered that you do not meet the three constituent elements of the trafficking definition on account of your adverse credibility and as such, it is not accepted conclusively that you were trafficked within St. Lucia, from St. Lucia to the United Kingdom and within the UK for the purpose of sexual exploitation…

It has, therefore, been decided “on the balance of probabilities” that you are not a victim of human trafficking within St. Lucia, from St. Lucia to the UK and within the UK for the purposes of sexual exploitation”.

The NSPCC disagreed with the conclusion in the June 2014 decision letter and made detailed representations. Ms Stancliffe responded in a letter dated 29 August 2014 in which she maintained the decision explaining that the information supplied by the Claimant is:

“ …not deemed to have been tested and investigated to the extent of police investigation and as such greater weight is given to the extent of a police investigation”.

After further representations by the NSPCC, Ms Stancliffe wrote in reply on 3 February 2015 upholding her decision and explaining that she had given weight to the views of the NSPCC.

Ms Stancliffe produced a witness statement after permission was granted in which she explained how he had reached her decision and she explains that she gave “significant weight” to the Borley Report and that she attached “limited weight” to the reports from NSPCC officials as well as to the Psychological report on the Claimant and to a report on her from the Helen Bamber Foundation.

Ms Kaufmann has contended that as it was made after the present proceedings had been started, this witness statement of Ms Stancliffe should be treated with some caution insofar as it does not reflect the reasons given in the actual decision in question, especially, as is the case here, the CA has not disclosed contemporaneous records (Footnote: ¹⁰) of the decision-making process such as the consideration minutes which decision makers are required by the Guidance to make and retain on file. I accept that submission and that the decisions in R v Westminster City Council Ex P Ermakov [1996] 2All ER 302 and R (Nash) v Chelsea College of Art & Design [2001] EWCA Admin 538 at [34] – [36] show that greater caution is required where the context is one requiring anxious scrutiny and where the evidence is put forward at a late stage and after the commencement of proceedings. This case would appear to fall into that category where as I will explain, rigorous scrutiny was required.

There is a fundamental dispute between the parties as to how this Court should approach the challenges to the decision that the Claimant was not a victim of trafficking and, in particular, first, what degree of scrutiny is required of this Court, and second, the threshold which has to be reached in order to quash a decision.

As I have sought to explain, the adverse decision in the June 2014 decision letter was based on the Claimant’s “adverse credibility” because of her inconsistent and late accounts of events. The warning provisions in the Guidance (Footnote: ¹¹) and some expert evidence (Footnote: ¹²) has consistently recognised that people trafficked frequently act in this way as a result of being trafficked and are thereby traumatised so that allowances should be made for this when considering the reliability of the account of a person claiming to have been trafficked. There is a dispute as to whether the June 2014 decision letter and the subsequent decisions have considered these matters adequately or at all.

Ms Kaufmann contends that the decision of the CA that the Claimant was not trafficked was based on the reasoning of Ms Stancliffe, which was that:

The case for the Claimant is that the decision that the Claimant was not trafficked should be quashed for many reasons, including that:

Ms Anderson disputes all these matters and contends that the writers of the June 2014 report as the designated fact-finders were entitled to reach the decisions which they did and that no error of law has been established. In consequence, her case is that the decision cannot be quashed.

Thus the issues to be considered are:

It is common ground that this application is not an appeal on the merits, but there is a dispute between the parties as to the appropriate level of scrutiny this Court should adopt in determining the present dispute. The case for the Claimant is that heightened or more rigorous scrutiny should be applied because of the nature of the issues, especially as they will have a decisive impact on whether the Claimant will be able to enjoy the protection which the State accords to victims of trafficking which is a fundamental right.

Ms Anderson disagrees and she contends that allegations about defective reasoning must identify a related error of law or objective irrationality in order to found a jurisdiction for the court to intervene so as to quash the decisions under challenge. She submits that it is appropriate to apply a standard Wednesbury approach, and that the Court “cannot be asked to form its own view of the merits of the Claimant’s allegations and credibility as a witness in her own cause”. She proceeds to submit that the Court must identify an error of law or objective irrationality before it can quash the present decision. Ms Anderson relies on the well-known statement that :

“It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt.” per Lord Browne-Wilkinson (with emphasis added) giving the only reasoned speech in Reg. v. Bishop Challoner School, Ex p. Choudhury [1992] 2 AC, 182,197E.

In answer to the suggestion previously made on behalf of the Claimant at an earlier stage of the present proceedings, that this is a case calling for anxious scrutiny, Ms Anderson has helpfully reminded me of the 2014 Annual Lecture of the Administrative Law Bar Association given on 14 November 2014 by Lord Sumption entitled “Anxious Scrutiny” in which he explained that when this principle is used as a basis for intervening in a judicial review application on the basis of the merits of underlying allegations, this leads to an unprincipled approach for which there is no jurisdiction.

There have been three recent cases in which the Court has had to determine the appropriate approach to challenges to decisions in trafficking cases. First, in R (on the application of FM) v Secretary of State for Home Department) [2015] EWHC 844( Admin), Mr. Philip Mott QC (sitting as a Deputy High Court Judge) concluded that the anxious scrutiny approach should be applied in a case in which it was admitted that the claimant was a victim of human trafficking. The issue in that case was whether the claimant was entitled to discretionary leave to remain on trafficking grounds. The Judge explained that he would have quashed the decision even if a Wednesbury approach had been adopted.

In R (on the application of AB) v Secretary of State for Home Department [2015] EWHC 2014 (Admin), Judge Heaton QC (sitting as a Deputy High Court Judge) explained that he did not need to resolve this issue in that case in which the claimant sought to challenge the decision of Secretary of State that she was not the subject of human trafficking. He quashed the decision applying what he described in paragraph 35 as an “unvarnished Wednesbury” approach. So it must be assumed that he would have taken the same course if an anxious scrutiny approach had been adopted. So there was no decision in that case on the appropriate test to be applied.

Finally, in R (on the application of HAM) v Secretary of State for Home Department (supra), Ms Helen Mountfield QC (sitting as a Deputy High Court Judge) heard a challenge to a series of decisions in which it was held that that there were “no reasonable grounds” to conclude that the Claimant was a victim of trafficking for the purposes of the Trafficking Convention.

She concluded in paragraph 4 that where as in that case, human rights were involved, Courts were required to give:

“…anxious scrutiny to the decisions which the Defendant reached, and to be satisfied that the decisions: “…show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account."
(R(FM) v SSHD [2015] EWHC 844 (Admin) at[30], quoting R(YH) v SSHD [2010] 4 All ER 448 at 24).
The greater the likely impact of a decision on the rights of the person affected, the greater the detailed justification and explanation which will be expected.”

She proceeded to say in paragraph 5 that she would:

“…remind myself that the Court's task is one of review for error of law, not correctness, and that anxious scrutiny: "does not mean that the court should strive by tortuous mental gymnastics to find error in the decision when in truth there has been none. The concern of the court ought to be substance not semantics." (FM at [32], quoting R (Sarkisian) v IAT [2001] EWHC Admin 486 at [18]).

In order to decide on the appropriate test to be applied, the appropriate starting point is the observation of Lord Sumption in his lecture when he stated that:

“When the courts say, as they often do, that the intensity of review varies with the context, they are usually saying no more than that the more significant the right interfered with, the more cogent will be the justification required for the interference”. (page 6)

Ms Kaufmann’s present contentions are consistent with this approach and in those circumstances, it is not appropriate or necessary to enter into a consideration of the meaning and suitability of the “anxious scrutiny” requirement, which was relied on in HAM, but which has also not surprisingly been called “uninformative” by Carnwath LJ in R (YH) v Secretary of State for Home Department [2010] EWCA Civ116 [24]. Indeed Ms Kaufmann now accepts correctly in my view that the words “anxious scrutiny” should not be used to describe the process of review, which must be conducted.

She points out that in Kennedy v Information Commissioner [2015] AC 455, a majority of the Supreme Court endorsed a flexible approach to principles of judicial review especially where important rights are at stake. Lord Mance JSC (with whom Lord Neuberger of Abbotsbury PSC and Lord Clarke of Stone-cum- Ebony JSC agreed) accepted at paragraph 51 that:

“The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle…The nature of judicial review in every case depends on the context”

These three members of the Supreme Court in Kennedy (above) proceeded to approve at paragraph 51 the approach adopted by Lord Bridge of Harwich (with whom Lord Brandon of Oakbrook, Lord Griffiths and Lord Goff of Chieveley agreed) in R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514, 531 where he concluded that, subject to the weight to be given to a primary decision-maker’s findings of fact and exercise of a discretion:

“The court must be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines”.

Lord Mance went on to state in Kennedy (supra) at paragraph 54 that:

“in the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved”.

Similar reasoning was adopted in Pham v Secretary of State for Home Department [2015] 1WLR 1591 especially at paragraph 60. There is still room for a more intensive form of review now that the Human Rights Act 1998 is in force, as is shown by the statement of Lord Reed JSC in Pham at paragraph 114 on page 1628-9 that:

“The variable intensity of reasonableness review has been made particularly clear in authorities, such as R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, and R v Ministry of Defence, Ex p Smith [1996] QB 517, concerned with the exercise of discretion in contexts where fundamental rights are at stake. The rigorous approach which is required in such contexts involves elements which have their counterparts in an assessment of proportionality, such as that an interference with a fundamental right should be justified as pursuing an important public interest, and that there should be a searching review of the primary decision-maker's evaluation of the evidence”.

So pausing at this stage, rigorous scrutiny is required by the courts where fundamental rights are at stake and this degree of scrutiny is not limited to claims under the Human Rights Act 1998. So I cannot accept Ms Anderson’s submission to the contrary. So it becomes necessary to analyse the nature of the Claimant’s rights, which were in issue in the process leading to the decision that she was not a victim of trafficking. These rights have to be considered against the background of the fundamental and non-derogable nature of Article 4 of the ECHR (Footnote: ¹⁴). In Rantsev v Cyprus and Russia (2010) 51 E.H.R.R 1, the Strasbourg Court explained that:

“Together with articles 2 and 3, article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe. Unlike most of the substantive clauses of the Convention, article 4 makes no provision for exceptions and no derogation from it is permissible under art 15(2) even in the event of a public emergency threatening the life of the nation.”

The non-derogable right set out in Article 4 is of such fundamental importance that gateway decisions, such as the June 2014 decision, as to whether a person is a victim of trafficking and so entitled to the protection which the State affords to victims requires particular attention and rigorous scrutiny. In relation to Article 10 of the CAT, as I have explained, the Explanatory Memorandum states (so far as material and with emphasis added) that:

“127.

Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights …”

If the failure to identify a trafficking victim correctly is a breach of his or her fundamental rights, then another fundamental right is her or her right to have his or her claim properly investigated. In consequence, a failure to consider fairly and properly whether a person has been trafficked must also be a breach of his or her fundamental rights bearing in mind the significance of the rights granted to a person held to be trafficked as I explained in paragraph 2 above.

The nature of these fundamental rights is very different from the rights in the case relied on by Ms Anderson of R (on the application of Westech College) v Secretary of State for Home Department [2011] EWHC 1484 (Admin) in which there was no question of fundamental rights being involved, as the issue related to the revocation of a commercial sponsor’s licence which enabled the claimant in that case, which was a commercial entity to attract foreign students. My recollection is that it was not submitted in that case that there was a breach of any fundamental rights of the commercial sponsor. Indeed nothing which I said in my judgment in that case related to fundamental rights and so my judgment would not have any bearing on the approach to be adopted on the challenge in this case concerning fundamental rights for which a much more rigorous degree of scrutiny is required.

Therefore, all these factors show that the present application is in an area where the court should and can adopt a more rigorous approach to decisions refusing to hold that a person has been trafficked. Another matter relevant to the nature and intensity of the review of the June 2014 decision was explained by Lord Mance in Kennedy (supra) at paragraph 53 when he agreed with the statement of Carnwath LJ in IBA Healthcare Ltd v Office of Fair Trading [204] ICR 1364 at paragraph 92 that:

“a further factor relevant to the intensity of review is whether the issue before the tribunal is one properly within the province of the court”.

Lord Mance when quoting further from that judgment in the IBA case distinguished between on the one hand, areas in which judges are not properly equipped by training or experience or by not being furnished with the requisite knowledge to decide on issues depending on administrative or political judgments, and on the other hand, there were those cases where the question related to the fairness of a procedure adopted by the decision maker. Lord Mance explained that in those situations, the court has been more willing to intervene. This present case concerned the fairness of procedures adopted by the CA, which is a matter in respect of which the Court has the requisite knowledge, and this would be an area where it would not consider itself as not properly equipped to intervene.

So pulling the threads together, the rationality of a gateway decision that a person is not the victim of trafficking requires a heightened or a more rigorous level of scrutiny both because it relates to fundamental rights and also because it arises in an area in which a court has the requisite knowledge. This means that the approach of the courts should be in accordance with the approach of: Carnwath LJ (with whom Moore-Bick and Etherton LJJ agreed) in R (YH) v Secretary of State [2010] EWCA Civ 116 [24], which was that:

“the need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”.

I consider that to be the appropriate test to apply in this case. In case I am wrong, I will consider where appropriate whether a different result would be reached by applying the approach advocated by Ms Anderson.

I should add that an alternative or an additional way of considering this issue might well be that the investigative demands of the CAT can be regarded as being positive investigative obligations under article 4 ECHR, because the result of any investigation would have a decisive impact on whether the trafficked person would be able to invoke and enjoy the fundamental protections which the State must afford to victims in relation to their Article 4 rights. A positive conclusive grounds decision gives the Claimant substantial rights as I have explained in paragraph 2 above.

So it is arguable that it would follow that by failing to carry out a proper investigation into whether a person was trafficked means that the public body concerned, namely the CA, would be acting in a way which is incompatible with a Convention right under Article 4, which is unlawfulness proscribed by s6 (1) of the Human Rights Act 1998. Indeed such a procedural impropriety may be a denial of a Convention right (see Lord Hoffmann in Miss Behavin’ v Belfast City Council [2007] 1 WLR 1420 [14] and [15)). In the light of my other findings, it is unnecessary for me to reach a conclusion on this issue, which was not fully argued in front of me.

Introduction

In the June 2014 decision letter, there are frequent references to police investigations and I am not sure if that is different from or additional to what is in the Borley Report. In case it is, I will deal with this separately in paragraph 133, but I will start with consideration of the Borley Report.

The weight to be given to the Borley Report

Ms Stancliffe has explained in her witness statement with emphasis added that the Borley report was:

“a document to which significant weight should be given. It is an independent assessment of evidential matters informed by first hand experience of interviews with various individual referred to… [and] was relevant and the deserving of due attention”.

The conclusion of the Borley Report makes it clear that it was dealing essentially with the issue of whether there was sufficient “evidence of trafficking here to meet the threshold of ‘Realistic Prospect of Conviction” for submission to the Crown Prosecution Service for their consideration for charging those suspected of trafficking the Claimant. It was held that there was insufficient evidence to do so and this was apparently the decision to which Ms Stancliffe and the CA gave “significant weight”. It does not appear from the evidence that there was any other factor which was given similar or greater weight by Ms Stancliffe or the CA.

Ms Kaufmann contends that Ms Stancliffe erred by giving the weight she did to the Borley Report because the approach to a criminal investigation relating to the alleged traffickers is very different from the approach to be followed in the civil trafficking inquiry because, as I have explained, the Guidance and the warnings in it have substantial significance in that inquiry, but they do not have that role in the criminal investigation relating to the traffickers. In addition, there is a clear and basic difference between the standard of proof required for a criminal conviction of being sure or satisfied beyond reasonable doubt as compared with the standard of proof on a balance of probabilities required for a decision by the Secretary of State that a person has been trafficked.

Turning to the facts of the present case, Ms Kaufmann submits that these differences and some of the wording used in the Borley report are matters of very great concern, and, in particular, the approach in the June 2014 decision letter that a finding in the criminal law field will have “significant weight” when considering whether trafficking has been proved on the balance of probabilities, even though first, there are differences in the burden of proof between criminal proceedings and the trafficking inquiry being conducted by Ms Stancliffe, and second, there are warnings in the Guidance about the approach to evidence which do not apply in criminal proceedings but which apply to the process of deciding whether a person has been trafficked.

Ms Anderson submits that these criticisms should be rejected, because the weight to be given to the police investigation was a matter for the appointed decision maker and there can be no valid criticism of the approach of Ms Stancliffe or the CA. She contends that it is a matter of crucial importance that the police investigation was an investigation into the Claimant’s allegations against B and Christian Eireman which concluded positively that her allegations against both men were not substantiated by the evidence after investigation. Ms Anderson submits that the police heard the Claimant’s account and the weight to be attached to the evidence was a matter for them and the CA was entitled to decide on its significance and value in deciding if the Claimant had been trafficked. She contends that it was the police investigation along with the conclusions on the evidence that was considered by the CA.

Discussion on the Borley Report

Even after considering all Ms Anderson’s submissions, I have come to the conclusion that there are a number of very troubling features of the way in which the CA have approached and used the Borley report, giving it “significant weight”. These matters whether considered individually or cumulatively satisfy me that the decision of the CA will have to be quashed, and I will set them out in no particular order of importance.

First, I am troubled by the fact that Ms Stancliffe attaches “significant weight” to the conclusion in the Borley report that “ there is insufficient evidence to meet the threshold of ‘Realistic Prospect of Conviction” as being “deserving of due consideration”. She states that “the reasons underlying that conclusion were relevant to consideration of the weight to be attached to [the claimant’s] allegations”.

This reasoning seems to be based on the fact that unless there is a “Realistic Prospect of Conviction” of the alleged traffickers, the alleged victim will be unable to show that he or she has been trafficked. This reasoning ignores the fact that in order to conclude that there is a “Realistic Prospect of Conviction” of somebody involved in trafficking, a much higher threshold has to be reached than the test for a finding on the balance of probabilities that a person is not a victim of human trafficking. I have already explained that this is made clear in the Guidance (Footnote: ¹⁵). In addition, paragraph 134 of the Explanatory Report to CAT (Footnote: ¹⁶) provides that the identification process is very different from criminal proceedings as a criminal conviction is unnecessary for starting or completing the identification process. These provisions do not appear to have been considered or borne in mind by the CA.

The “Realistic Prospect of Conviction” test is set out in paragraph 4.5 of The Code for Crown Prosecutors under which “Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction”, which entails making the jury or the magistrate sure of the guilt of the defendant or of proving his or her guilt beyond reasonable doubt.

There will obviously be cases in which the guilt of a party for trafficking cannot be established in that way, but that on the same evidence there could also be an unchallengeable finding on the balance of probabilities that a person has been a victim of human trafficking. It follows that the finding in the Borley report that “There is insufficient evidence to meet the threshold of Realistic Prospect of Conviction” falls a long way short of justifying the decision of Ms Stancliffe to attach “significant weight” to it for the purpose of determining the totally different question of whether it has been shown that on the balance of probabilities that the Claimant is a victim of human trafficking. These different thresholds do not appear to have been appreciated in the witness statement of Ms Stancliffe or in the June 2014 decision letter. I consider that the failure to appreciate these matters and instead to rely on the conclusions in the Borley report without making any adjustments for the different standards of proof constitutes an error of law especially in the light of the “significant weight “ attached to it.

Second, in giving “substantial weight” to the finding in the Borley report that “There is insufficient evidence to meet the threshold of Realistic Prospect of Conviction”, the CA did not appear to appreciate that Detective Inspector Borley (unlike the CA) was not required to take account of, and indeed did not take account of, the provisions in the Guidance, relating to the treatment of people who had been trafficked which did not apply to police inquiries relating to whether the alleged traffickers had committed criminal offences. Indeed the Borley report states that the Claimant had given accounts to the police and the United Kingdom Border Agency, which are “inconsistent with the reports submitted by the defence in the matter of sexual activity”. I add that, as I have already explained, the Guidance contained many provisions explaining how those inconsistencies should be approached in the trafficking inquiry but they did not have to be considered (and indeed were not considered) in the Borley report. Those terms in the Guidance were of critical importance in deciding if the Claimant was a victim of trafficking because she is alleged to have made inconsistent statements or given late disclosure (Footnote: ¹⁷). As I have explained, the reason why the CA found that the Claimant was not trafficked was because of the Claimant’s “adverse credibility” and this shows the significance of the warnings in the Guidance in this case particularly as providing excuses for inconsistent or late statements.

Surprisingly, the June 2014 report proceeds to consider it correct to automatically accept the conclusions in the Borley report without considering whether the Guidance could or did contain matters which would or could lead to a different conclusion in the Borley report because it is not stated that it was applied in the June 2014 report or more importantly in Ms Stancliffe’s witness statement of 2 June 2015 which has a section entitled “Material relied upon, and weight given to that material”. Her witness statement does not refer to the Guidance or to the warnings in them and I am sure that if those provisions had been considered and taken into account, that important fact would have been mentioned in her detailed and carefully drafted witness statement.

The warnings in the Guidance should have been considered and taken into account by the CA before concluding that what was said in the Borley report was directly applicable to the decisions as to whether the Claimant has been trafficked and in particular in deciding which parts of the Claimant’s evidence to accept.

It is true that some warnings in the Guidance were recited in the June 2014 decision letter, but they are not referred to in the witness statement of Ms Stancliffe and there is nothing in the June 2014 decision letter which shows that the CA actually considered, applied or used them in any way to decide what weight to attach to the Borley report or to consider it in the light of those warnings. So the position is that there is no evidence that the critically important provisions in the Guidance were considered or applied when “significant weight” was attached to the conclusions in the Borley report or before the June decision was made. Indeed the way in which the conclusions in the Borley report are regarded as being automatically applicable to the inquiry as to whether the Claimant was trafficked are disturbing as suggesting that she regarded those conclusions as being automatically determinative.

As I have already explained, it was incumbent on those reaching “Conclusive Grounds” to pay regard to the Guidance and a failure by a public authority to follow its own established policy without good reason to depart from it can be an error of law (Lumba v Secretary of State (supra)). No good reason has been established and so this is another error of law.

Third, a further reason why the CA should not have given substantial weight to the Borley report in the way that it did was that Detective Inspector Borley unlike the CA, did not have to consider the expert evidence (Footnote: ¹⁸) relating to the need to take account of the mitigating reasons as to why a potential victim of trafficking might be inconsistent or delay giving details of material facts. Much of that expert evidence was highly relevant on the issue of the Claimant’s credibility and the failure on the part of the CA to appreciate this was another error of law.

Fourth, I was also concerned by the conclusion in the Borley Report which states (with emphasis added) that:

“Whilst the matter could be considered one of Child Sexual Exploitation, there is insufficient evidence to meet the threshold of ‘Realistic Prospect of Conviction for submission to the [CPS] for their consideration for charging”.

These words suggest that there was some unspecified evidence of “child sexual exploitation” of the Claimant and this would have been or could have been relevant to whether the Claimant was trafficked. It will be recalled that the conclusion in the June 2014 decision why the Claimant was not held to have been trafficked was because there was “insufficient information taking account of the police investigation to meet [the requirement of “sexual exploitation” in part c of the definition]”. There is nothing to suggest that the CA or any representative of the Secretary of State or of the CA considered or investigated whether the conclusion in the Borley report that “the matter could be considered one of Child Sexual Exploitation” meant that on the balance of probabilities the requirement of sexual exploitation had been satisfied and that the Claimant had been trafficked. The significance of this is that Ms Stancliffe had to show by her reasoning that every factor which might tell in favour of the Claimant has properly been taken into account in accordance with the test in YH which I explained in paragraph 104 above. I do not think that this was done for the reasons which I have sought to and am seeking to explain.

Fifth, I was concerned that the Borley report failed to consider the allegation of whether the Claimant was trafficked whilst staying with P, NX and N which was the third of the four alleged trafficking incidents identified by the decision makers. It would seem that the decision makers considered that their conclusion that the Claimant was not trafficked into the United Kingdom by B (namely the second incident) as being decisive on the third issue. These issues should have been separately considered, as the third incident could by itself have constituted trafficking of the Claimant.

Sixth, there are apparently contradictions in the Borley report as it stated that “there is no evidence of trafficking here either sexual servitude or sexual slavery”. Ms Stancliffe says in her witness statement that “this is not taken to mean there is no evidence of trafficking at all”, but instead that it means (with my emphasis added) that “there is not sufficient evidence of servitude or sexual slavery to support a conviction”.

I have difficulty in reading the statement in the Borley report in this way, as there is a marked difference between having “no evidence” and a situation where “there is not sufficient evidence … to support a conviction”. More importantly, I do not understand the basis on which Ms Stancliffe considered that there was evidence of servitude or sexual slavery, but crucially she did not proceed to explain what it was and why it did not assist in showing that the Claimant was trafficked. In other words, there are clear elements, which support the Claimant’s case, which Ms Stancliffe did not appear to have taken into account. Returning to the test of the Court of Appeal in YH, which I set out in paragraph 104 above, the decision of Ms Stancliffe on this point did not satisfy the requirement of “the need for decisions to show by their reasoning that every factor which tell in favour of the applicant has been properly taken into account”.

Seventh, the Borley report did not state whether the Claimant was a reliable or credible witness after taking account of the provisions in the Guidance , which was the crucial matter. Indeed the sole and crucial matter in the Borley report which might not support the Claimant’s account and case is the decision not to prosecute. It did not state whether Detective Inspector Borley considered the Claimant as a credible or a reliable witness nor does it set out any reasons why the Claimant’s version of events should not be correct on a balance of probabilities. Consequently, the Borley report did not provide a rational basis on which the Claimant’s evidence could be rejected. It is noteworthy that in M’s case, this factor was regarded as the main error of the CA. Applying the YH test, I have concluded that Ms Stancliffe failed to show by their reasoning that every factor which was in favour of the Claimant has been properly taken into account.

Conclusions on the Borley Report

So for the reasons which I have sought to set out, the application of the heightened or the more rigorous scrutiny test means that the decisions that the Claimant was not the victim of trafficking must be quashed.

The same conclusion would be reached if the test advocated by Ms Anderson was followed because of the errors of law to which I have referred and in particular the first two matters of concern set out in paragraphs 115 to 123 above. Those errors include my conclusions that those at the CA, who were responsible for the June 2014 decision and the later decisions upholding it, failed to take into account as they should have done the crucial differences in approach between their inquiry and that conducted by Inspector Borley in that they, unlike him, had only to be satisfied on the balance of probabilities, and that they unlike him had to bear in mind and apply the warnings in the Guidance. These matters are very important especially as the CA considered that the crucial issue in determining that the Claimant was not trafficked was whether her evidence suffered from “adverse credibility”.

The results of the police investigations

As I explained in paragraph 108 above, I was not sure if the references to the police investigations in the June 2014 report were simply references to the Borley report or something additional. If the former, I have already dealt with them, but if the latter, they require additional consideration. There would appear to be some matters of concern.

First, it is not known what the purpose of the police investigations was. So the purpose could have been to decide if the traffickers could be prosecuted or whether the Claimant was the victim of trafficking.

Second, if it was the former purpose, then for the reason which I have sought to set out, the police investigations would be of no value as the standard of proof would have been very different from that required for an inquiry as to whether the Claimant was a victim of trafficking.

Third, if the purpose of the investigation was whether the traffickers could or should be prosecuted, then the result of that inquiry cannot show the Claimant as the victim was or was not trafficked for a number of reasons including that the warnings in the Guidance, which would not have been relevant to the decision to prosecute, could have led to a different result and the police investigations did not consider or reach conclusions on whether the Claimant’s account was credible.

Finally, many of the other matters, which have caused me to decide that the CA was wrong to rely on the Borley report, would apply equally to the police investigations.

The Correct Approach of the Decision- Maker to Expert Evidence

In R (AA(Iraq)) v Secretary of State [2012] EWCA Civ 23 at [74], Sir David Keene giving the judgment of the Court of Appeal explained in respect of an expert’s report in a trafficking case that:

“The Competent Authority had to evaluate that report and decide how far it stood up to a proper evaluation”.

In this case, expert evidence supporting the Claimant’s case was given by five people. There were reports from experts on trafficking by Ms Swati Pande of the NSPCC dated 28 November 2012, by Ms Carly Adams of the NSPCC dated 9 July 2013 and by Mr. Mike Hands, who is a former law enforcement professional who worked for the Centre for the Child and Adult Safeguarding and which was dated March 2013. There were also the Psychological report from Dr Eileen Walsh, a Clinical Psychologist of 28 February 2014, and a report from Ms Emily Cavendish, a Psychotherapist on behalf of the Helen Bamber Foundation.

These reports contained information on a number of matters including on the critically important issue of the special difficulties for trafficked people and especially trafficked children in giving full, prompt and consistent accounts of what had happened to them as a result of the trauma of being trafficked with the consequence that there may be mitigating factors to be taken into consideration in deciding whether to accept their evidence.

The reports explain why allowances had to be made for these people especially as the outcome of the inquiries to determine if they have been trafficked would depend to a very substantial account on whether their evidence is accepted as accurate. This evidence is not surprising because, as I have explained (Footnote: ¹⁹), one of the purposes of the Guidance is to warn those who have to make decisions as to whether a person has been trafficked that they have to take account of the effect of trafficking, including that due to the trauma of trafficking, there may be valid reasons why a potential victim’s account is inconsistent or lacks sufficient detail.

So the evidence of these experts explains why the CA has to approach the reliability of the evidence of the person who claims to be trafficked very differently from the evidence of a conventional witness or indeed other classes of victims.

If these provisions and similar expert evidence are ignored, there is a great risk that that the person alleged to be trafficked will be disbelieved because his or her version is inconsistent. This would have the consequence that he or she would not be treated fairly as the crucial effect of the trauma of having been trafficked would have been ignored in appraising his or her evidence.

Ms Stancliffe explained that she would give “limited weight” first, to the evidence adduced by the NSPCC, and then second, to the Psychological report of Dr Eileen Walsh and the report of Ms Emily Cavendish, a Psychotherapist on behalf of the Helen Bamber Foundation. Ms Stancliffe gave different reasons for treating the evidence of these different categories of experts in this way and so these will have to be considered separately.

The Approach of Ms Stancliffe to the Evidence Adduced by the NSPCC

The Guidance recognises that organisations, like the NSPCC, that support those who claim to be traffickers can help the CA and the fact finders who have to decide if particular people have actually been trafficked. Indeed, the Guidance recognises the role and expertise of these organisations as it states (with emphasis added) that:

“Although police and intelligence reports can provide objective evidence to strengthen a claim, you must give due weight to the reports and views of …the organisation supporting the individual.

These organisations may have spent more time with the potential victim and established a degree of trust. Exploited people often don’t trust or are afraid of the police or immigration officials...

If after contacting the …support provider … there is not enough evidence to conclude that the reasonable grounds test is met, you are entitled to make a negative decision. However, you must first contact the support provide to discuss your decision and to give them the opportunity to provide any further information”.

So the CA was required to evaluate each report from the NSPCC officials and then to decide how far it stood up to a proper evaluation, and in doing so, it was bound under the Guidance to give “due weight” to the reports and views of the organisation supporting the individual. This provision in the Guidance reflects the fact that these organisations know from their own expertise and experience first, how trafficking works and this enables them to test the cogency of the account of the individual concerned, and second, why and how those who have been trafficked may because of their experiences give inconsistent accounts or fail to mention something of importance at an early stage.

The expertise and knowledge of people like the NSPCC officials relating to how trafficking works enabled the CA to test the cogency of the Claimant’s account, as the evidence of those who claim to be victims of trafficking must be considered very differently from ordinary witnesses in the light of these special factors together with the experience and expertise of the support organisations.

It must not be forgotten that first, that these organisations supporting the individual, like the NSPCC, will have spent more time and over a longer period with the individual than the police and the CA (even if they had seen the individual) and that they have thereby established a degree of trust; and second, that exploited people often do not trust or are afraid of the police or immigration officials. So the views of the organisation supporting the individual had to be taken into account by the decision-maker, who of course was not obliged to accept them.

The Claimant’s case is that was not done in this case by Ms Stancliffe, who gave “only limited weight” to the views of the experts in the organisations supporting the Claimant, namely the NSPCC. Ms Stancliffe has explained that it was appropriate to attach “only limited weight” (rather than “due weight” as specified in the Guidance) to these reports from those experts because in her words (with emphasis added):

“[T]hey are largely based on [the claimant’s] self-reported accounts. The role of those organisations is not necessarily to test the credibility of a potential victim of trafficking but primarily to provide support, and this will be reflected in such training as is provided. In this case, after consideration of all the circumstances and materials, I consider that it is appropriate to attach only limited weight to the self-reported statements of [the Claimant] and in consequence to the reports from organisation such as the NSPCC and Mike Hand where they rely on information from [the Claimant].”

Ms Kaufmann contends that this conclusion assumes that these reports contained only or mainly of self-reported statements of the Claimant, but she states that this is not correct because the reports provide much further information and carefully considered conclusions based on the extensive and relevant experience of the writers who did not simply act as mouthpieces for the individual concerned but who, for example, give their experience of the difficulties for trafficked people in giving reliable evidence. It is these difficulties which are of great importance in the present case because the Claimant’s claim that she was trafficked was rejected because her evidence suffered from “adverse credibility” and I will focus on the evidence from the experts relating to how the CA should have considered her evidence.

The case for the Claimant is that the writers of these NSPCC reports analysed the information given by the Claimant and then used their own experience in coming to their own conclusions. So it is said that what was required of the decision maker in this case, namely CA was in the words of Sir David Keene in AA(Iraq) ( which I have quoted) “to evaluate [the experts’ reports] and decide how [they] stood up to a proper valuation”. This entailed a careful analysis of everything the experts said in order to consider if each aspect of their expert evidence assisted the CA in reaching their conclusion. Thus, it is said by Ms Kaufmann that disregarding the statements because the role of the NSPCC is “primarily to provide support” is unjustified as the reports of the NSPCC staff gave much information of value to the decision maker, which could not be merely “self-reported accounts”. As I will explain, a matter of particular importance was the evidence of the NSPCC staff relating to the ability of those trafficked to give prompt and consistent evidence in the light of the trauma suffered by them while being trafficked.

Ms Anderson stresses that it is up to the decision-maker to decide on the appropriate weight to attach to all evidence, including that of the NSPCC. I agree with Ms Anderson that the decision makers are not obliged to accept the views of experts as to whether a person was trafficked.

Indeed when the NSPCC wrote to Ms Stancliffe in October 2014 explaining why the NSPCC considered that the Claimant was a victim of trafficking, Ms Stancliffe replied on 3 February 2015, explaining that “the opinion of NSPCC is a matter that carries weight generally and does so in the consideration of this claim”, but that

“the Competent Authority is under a duty to form an independent view and it cannot effectively delegate the decision to any other body or to individuals who advocate the claim on a claimant’s behalf”.

It is now necessary to focus on the value of different parts of the evidence from the NSPCC and Mr. Hands to the decision maker, bearing in mind that the decision maker like a judge is not obliged to automatically accept the evidence of one party’s experts without hearing all the evidence and making his or her decision although the decision maker is required “to recognise the conclusions of the report, engage with them and explain, however briefly why she disagreed with them” (per Judge Heaton (sitting as a Deputy High Court Judge in R (AB) v Secretary of State (supra) [41]). In other words, the views of the expert form only one part, but often an important part of the evidence before the decision maker.

Ms Kaufmann drew my attention to the comments of Moore Bick LJ in R(on the application of AM) v Secretary of State [2012]EWCA Civ 521 in which the Court of Appeal reversed a decision that the decision maker erred in rejecting the evidence of an expert who took “everything [a party] said at face value”. In SS (Sri Lanka) v Secretary of State [2012] EWCA Civ 945, Moore Bick LJ expressed similar views.

I agree with Ms Anderson that these expert reports are not to be regarded as “trump cards” for the claimant, but they must be evaluated but if they are not accepted, explanations have to be put forward for rejecting them. The fact finder may well be helped by expert evidence explaining the difficulties confronting those who have been trafficked in putting forward a prompt and consistent claim by setting out the known reasons why trafficking victims might give inconsistent accounts or delayed accounts.

The NSPCC Evidence

I turn to consider the reports starting with that of Ms Swati Pande of the NSPCC dated 28 November 2012 and which is supported by the usual declaration found in expert witness statements. She is based at the NPCC National Child Trafficking Centre which gives specialist advice to other professionals dealing with child trafficking. It offers, among other services, the training for UKBA Competent Authority. Ms Swati Pande in a detailed report occupying 34 pages explained (with emphasis added) that:

(a)

“The Government Guidance for safeguarding children who may have been trafficked states that ‘Many children travel on false documents. Even those whose documents are genuine may not have access to them. One way that traffickers exert control over trafficked children is to retain their passport…”;

(b)

“Relevant research also indicates that disclosure can take time and that most disclosures are elicited over time within a trusting and supportive relationship... it is understandable that [the Claimant] may have blocked out some traumatic memories and may be able to disclose them at a later date”;

(c)

“In my professional experience of working with children from the U.K. who have been abused and trafficked children from outside the U.K. there are many similarities in how they are groomed and controlled. This grooming means creating a dependency emotional or practical, removing the child from protective factors, limiting their space of action and use of threats to make the child compliant. This also ensures that the child is unable to break away from their abusers even when there might not be any obvious form of control that professional can identify. I would assess that [the claimant] was in a similar dynamic with [B], [J] and Sam, She was a vulnerable child in a foreign country and completely dependent on them”;

(d)

“I would like to highlight that when [the Claimant] was recruited by [B] she was a 17 year old child, living in a very abusive environment and she was groomed by him to come to the United Kingdom. Once she arrived in the U.K, she was completely dependent on him and he abused his position of power”; and that

(e)

“I would assess [the Claimant] to be a victim of child trafficking”.

There are a number of features of these conclusions which are relevant and of value in appraising the Claimant’s evidence such as that disclosure of information by a trafficked person can take time and by implication, this delay must not be held against the person alleged to have been trafficked.

The report from Ms Carly Adams of NSPCC dated 9 July 2013 stated that she was a Children’s Services Practitioner in the Protect and Respect Service of the NSPCC and that she had been in contact with the Claimant mostly on a weekly basis since January 2012 until her report extending over 21 pages was written in July 2013. She explained (with emphasis added) that:

(a)

“The assertion that [the Claimant] did not disclose that she was trafficked until she was arrested suggests to me a limited understanding of trafficking and how it manifests… Many trafficked people do not understand the concept of trafficking or can identify themselves as a victim. At the time of her arrest [the Claimant] had no understanding of what trafficking or sexual exploitation was”;

(b)

“With regards to the assertion that [the Claimant] has provided inconsistent accounts to the police and immigration; people who are in a trafficking situation are often extremely reticent with information and often relate their experience in an inconsistent way or with obvious errors. More often than not this will be because their stories are composed by others and learnt It is also because they are fearful of the consequences or distrustful of the agencies they are reporting to; and that

(c)

“I assess that [the Claimant] is a young person who was trafficked to the U.K. for the purpose of sexual exploitation when she was a child… [The Claimant’s] account has been largely consistent with some admissions of inaccurate reporting. In my experience of working with sexually exploited and trafficked young people I recognise that some young people will find it difficult to rust (sic) in adults and will often be fearful of the consequences of sharing the truth; that does not mean that they are not credible witnesses and acknowledges the need to allow that young person to build a safe and trusting relationship with an adult to share their full and truthful account”.

There is much in Ms Carly Adams’ statement, which would have been of value to the decision maker as explaining the difficulty for a person who had been trafficked in putting forward a prompt, full and consistent account of his or her treatment. I do not see how these conclusions or those of Ms Pande can be refuted as being “largely based on [the Claimant’s] self-reported statements”. Ms Anderson made the point on a number of occasions that the Claimant had lied when she said that she had met B in person because she thought that it would seem stupid to explain the true position which was that she had met him through the Internet. The expert evidence and indeed the provisions in the Guidance would be relevant in deciding how to appraise this evidence.

It is fair, however, to add that Ms Stancliffe later stated in her letter of 3 February 2015 that the opinion of the NSPCC “ carries weight generally”, but she later said in her witness statement of June 2015 that she considered it “appropriate to attach only limited weight…to the reports from organisations such as the NSPCC”. So it is necessary to see what the June 2014 decision actually stated.

I have not found anything in the June 2014 decision or elsewhere that shows that that decision expressly or even impliedly took into account specifically the warnings from any of these experts given about the way in which people who have been trafficked give their experiences in an inconsistent way or not at the first or an early opportunity. This was the position notwithstanding that there are similar provisions in the Guidance which warn that the trauma of trafficking may be a valid reason for the potential victim’s account being inconsistent or lacking sufficient detail. No reason is given explaining why this material is not referred to as in the decision-making process. I consider this to be irrational or an error of law particularly as the evidence of the NSPCC officials was supported by similar provisions in the Guidance. In any event, as I will explain, I regard the failure to engage with and take account of the warning provisions in the Guidance was irrational or an error of law.

I should add that, as I have explained, Ms Swati Pande and Ms Carly Adams made statements explaining why they believe that the Claimant was trafficked. I do not consider it necessary to extend the length of this judgment by considering whether the June 2014 decision should be quashed for this reason because if I am right on the other issues which I have been considering, the CA’s decision will have to be quashed, while if I am wrong on those other issues, the Claimant could not succeed on this issue.

The Approach of Ms Stancliffe to the Evidence Adduced by Dr Walsh and Ms Cavendish

Dr Walsh is employed as a Highly Specialised Clinical Psychologist by Camden and Islington NHS Foundation Trust and she specialises in assessing refugees and other groups including victims of trafficking. She explained in the Psychological report that the Claimant had “psychological problems that are consistent with her account of a long history of abuse and exploitation”.

Dr Walsh commented on discrepancies in the Claimant’s account and she observed (with emphasis added) that in her:

“clinical experience, it is not uncommon for details [that are closely connected with the Claimant’s report of abuse related events] to be confused or forgotten in the context of abuse, particularly when a person has consumed excessive alcohol. Research on memory and trauma supports this”.

She then gives details of the research which show this to be the position and added that:

“In my professional opinion, non disclosure of childhood sexual abuse during interviews such as her Home Office interview should not be relied on as evidence that that [the Claimant] lacks credibility”.

Ms Cavendish is a BACP registered and accredited counsellor/physiotherapist, who works for the Helen Bamber Foundation. She was aware that it had taken time for the Claimant to adduce some details of what happened in St Lucia and in the United Kingdom, but she explains (with emphasis added) that:

“it is entirely consistent with an individual’s childhood history of sexual abuse, exploitation and trafficking for such survivors to give testimony that is patchy, inconsistent and for there to be non-disclosure at any early stage of relevant events.”

The evidence of Dr Walsh and Ms Cavendish does contain relevant evidence showing that there can be acceptable excuses for evidence from somebody in the Claimant’s position to be confused and inconsistent evidence as well as not being given at the first opportunity.

Ms Stancliffe explains that she considered “whether there are any mitigating circumstances in relation to [the Claimant’s] account [in relation to the trafficking by BX in St Lucia]”, and she then referred to the Psychological report, which stated that the Claimant was “asked about a range of common psychological problems” before concluding that the Claimant “did not report any psychological difficulties that indicated that [the Claimant] may currently have a psychiatric disorder”.

Ms Stancliffe noted that this report and the report from the Helen Bamber Foundation found that the Claimant suffered from PTSD which was “attributed to [the Claimant’s] experience with her family in St Lucia and subsequent relationships with men”. She explained that both reports noted first, that the Claimant had difficulties in identifying appropriate boundaries with men because of her early relationships with her family; and second that;

“some discrepancies within the recall of specific events are likely to occur, however the inconsistencies identified above are the lack of reporting of an event as opposed to inconsistencies within the details related for events within St Lucia and therefore this is not mitigated for”

In her witness statement made in June 2015 Ms Stancliffe records that the psychological report from Dr. Walsh and the report from the Helen Bamber Foundation have:

“limited weight because there was no finding that [the Claimant] suffered any psychological disorder (as at the date of the reports). The reports note that any historic post-traumatic stress disorder was linked to [the Claimant’s] family circumstances and other circumstances that were not based primarily on alleged tracking in itself”.

I have to approach this evidence with caution because as I have explained in paragraph 77, this is the correct approach to adopt when evidence on a judicial review application is adduced at a late stage and after the commencement of proceedings in a case, like the present one, in which a high level of scrutiny is required. In any event, I am again troubled that there is little reference to the parts of the evidence from Dr. Walsh and Ms Cavendish (or indeed the supporting evidence of Ms Pande and Ms Adams) which shows, as I have stated by referring to their evidence or to warning provisions in the Guidance, that the trauma of trafficking may be a valid reason why a potential victim’s account is inconsistent or late and that this needs rigorous consideration. The starting point of the CA should have been to ask itself before making a finding of “adverse credibility” against the Claimant whether any inconsistencies in her evidence or any failure by her to disclose matters promptly was caused by the trauma of being trafficked, but this was not done.

Conclusion

I regard these omissions as worrying especially because of the statement of Carnwath LJ in YH that there is “the need for decisions to show by their reasoning that every factor which tell in favour of the applicant has been properly taken into account”. So I have concluded that the decision has to be quashed for that reason on the basis that the decision makers failed to show that it properly took into account the evidence (which was fortified by similar provisions in the Guidance) that the trauma of trafficking may well explain why the victim’s account was inconsistent or was late. The CA failed to consider, as it should have done, whether inconsistencies in the Claimant’s evidence can be explained on any other basis than that she was lying.

Indeed even if Ms Anderson is correct and a Wednesbury approach had to be adopted, then the decision would have to be quashed as it was irrational to fail to take into account the expert evidence from the NSPCC, Dr Walsh and from Ms Cavendish, especially as all their evidence on this issue was strongly supported by the Guidance.

In conclusion, the decision that the Claimant was not trafficked has to be quashed as the decision- maker failed to take into account the evidence of the experts fortified by the Guidance relating to the reasons why an honest person who had been trafficked might well give inconsistent evidence or evidence late.

When dealing with the three basic components of human trafficking in the decision letter of 3 June 2014, the CA found that the Claimant satisfied the first requirement of an “action” i.e. “the person has been subject to the act of recruitment, transportation, transfer, harbouring or receipt which is achieved by a means”. It is common ground that that the Claimant, who at the relevant time was under 18 years of age, did not need to meet the second requirement which was the “means” requirement.

So the only component of human trafficking which remained in issue was the crucial issue of whether there was “purpose” namely “sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, forced criminality or the removal of organs”. The CA found that this requirement could not be satisfied on account of the Claimant’s “adverse credibility”, but Ms Kaufmann contends that this is incorrect as this requirement was satisfied on account of a series of factors many of which the Defendant had apparently accepted when dealing with the requirement of an “action”, namely that:

As nearly all of these features which led the decision-makers to conclude that the “action” requirement of the definition was met, it is very surprising that they were not taken into account in deciding if the “purpose” requirement was satisfied particularly as I have explained in paragraph 125 that it was accepted in the Borley report that there was some evidence of child sexual exploitation.

For example, the Borley report stated that “this matter could be considered one of child sexual exploitation” and Ms Stancliffe in her June 2015 witness statement explained that the finding in the Borley report was that “there is not sufficient evidence of servitude or sexual slavery to support a prosecution”.

No cogent reason has been put forward as to why the CA did not take these matters into account or the fact that when she came to this country, the Claimant had no accommodation or money of her own and nobody to turn to. It is noteworthy that in the M case, Elisabeth Laing J considered it irrational in the Wednesbury sense to accept the evidence of the claimant to show that one of the requirements was satisfied, but then not to accept the same evidence to show that another one of the requirements was not satisfied as it was not corroborated. I respectfully agree and reach the same conclusion in this case.

As I have explained, there was in Carnwath LJ’s words “the need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”, but the failure of the decision maker to take into account the matters set out in paragraph 177 above constitutes a breach of this duty.

Further, as I have explained, the CA should have considered the provisions in the Guidance which specifies that in considering the reliability of potential victim’s evidence that due to the trauma of trafficking, there may be valid reason why that person’s account is inconsistent and lacks sufficient detail. The failure to consider this by the CA constitutes a further breach of this duty and a mistake of law. Thus the decision of the CA has to be quashed irrespective of whether the approach adopted by Ms Kaufmann or that advocated by Ms Anderson is adopted.

The case for the Claimant is that the CA made errors as first, it failed to comply with the provisions in the Guidance and the expert evidence relating to the warnings as to how to approach inconsistencies in the Claimant’s evidence; second, the June 2014 decision incorrectly assumed that the Claimant's evidence had to be corroborated; and third, there were incorrect statements contained in the June 2014 decision. I will deal with these matters in that order.

The Warning Provisions in the Guidance

I have already set out in paragraph 22 the provisions in the Guidance explaining why the trauma of being trafficked might well lead victims to give inconsistent evidence or not to give it at the first opportunity. These provisions should have been considered and taken into account before deciding if the Claimant’s evidence was credible, but there is no evidence to demonstrate that they were taken account of or even considered. It is not stated that they were applied in the June 2014 report or more importantly in Ms Stancliffe’s witness statement of 2 June 2015 which contained a section entitled “Material relied upon, and weight given to that material”, which does not refer in that section to the Guidance or to the warnings in them. This is a serious error because I respectfully agree with Elisabeth Laing J’s conclusion in M (supra) at [55] (with emphasis added) that:

“...the guidance demands a high standard of reasoning from the CA, and rightly demands that if a decision is to turn on lack of credibility, the CA must carefully analyse the relevant factors and explain her reasoning about credibility in her decision”.

It is trite law that a failure by a public authority to follow its own established policy can be an error of law without good reason to depart from it (Lumba v Secretary of State (supra)). In the light of the importance of the warning provisions in the Guidance and of the supporting expert evidence to which I have referred, I have concluded that the failure to follow and take account of these provisions constitutes an error of law especially as no good reason has been put forward as to why the policy in the Guidance should have been departed from. Similarly, the failure to take note of and to act on similar warnings in the expert evidence was a further breach of the duty. So this is another reason why the decision that the Claimant was not trafficked has to be quashed irrespective of whether the threshold for quashing is that advocated by Ms Kaufmann or that relied on by Ms Anderson.

The June 2014 decision stated in respect of various aspects of the Claimant's evidence that they should have been, but were not, corroborated and so that evidence had to be rejected. First, the June 2014 decision stated in respect of the allegation that the Claimant had been trafficked by B having brought her to the United Kingdom that this aspect of her account "is not corroborated to the required standard of proof". That statement indicates or assumes that there was a general requirement of corroboration as a condition for this evidence to be accepted and not as Ms Anderson submits just considering “if it is supported”. Second, in respect of the Claimant's case that she was trafficked while staying with P, NX and N in the United Kingdom, the June 2014 decision stated that "there is no corroborative evidence from the police to support this aspect of the account". These comments show the importance attached by the CA to the task of finding corroboration before the Claimant's case could be accepted, and, as I have explained, it was ultimately not accepted because of the “adverse credibility” finding relating to the Claimant’s evidence.

The importance attached by the CA to finding corroboration is also apparent in Ms Stancliffe’s witness statement made in June 2015 after permission was granted in which she pointed out in respect of the Claimant's “self-reported statements” that:

“Without further corroborative evidence these remain uncorroborated allegations and would not usually in themselves alone be expected to meet the required standard of proof depending on all the circumstances of the case”.

This suggests that she regarded the need for corroboration as a requirement that had to be satisfied before the Claimant's evidence could be accepted. Ms Stancliffe adopted a similar approach when she observed later in her witness statement that “this was not a case where there was any substantial corroborative evidence to support [the Claimant's statements] in support of her claims”. In other words, she was saying that the lack of corroboration was determinative.

Ms Kaufmann contends that these statements show that the CA considered that there was a requirement of corroboration, but that the true legal position is that there is no need for corroboration. Ms Anderson submits that the decision maker can decide how to deal with the evidence and she points out that the Guidance (Footnote: ²⁰) mentions the need to consider if there is “reliable supporting evidence” and the need to consider any statements in the context of other evidence. What is important is that the Guidance does not state that corroboration was needed as a pre-condition for accepting the evidence of a person alleged to have been trafficked which was the CA’s approach.

The approach of the CA in this case is not supported by the recent analysis of Elisabeth Laing J in the M case where she observed (with emphasis added) that:

“61…on a fair reading of the decision, the CA treated the lack of corroboration for the Claimant’s account as determinative. Even in a criminal trial, where the standard of proof is higher than the balance of probabilities, there is no legal, or factual, requirement of corroboration. The prosecution may make a jury sure that a defendant is guilty on the basis of the uncorroborated evidence of one witness. It is therefore surprising, to say the least, that the Defendant has apparently required corroboration, whether as a matter of law or fact, in a decision which is to be made to the lower civil standard. In my judgment, if there is no requirement of corroboration in a criminal trial, the Defendant has erred in law in introducing one in this context, where the standard is the balance of probabilities”.

I reach the same conclusion but by a slightly different route. There are some statutory provisions which show that corroboration is required in criminal cases, such as in perjury where a person cannot be convicted solely upon the evidence of one witness as to the falsity of any statement alleged to be false (Perjury Act 1911 s.13). There are no similar provisions which could relate to the evidence before the CA relating to trafficking nor has any reason been suggested as to why corroboration should be required. I agree that corroboration is not required because there is no requirement at common law or under any relevant statute for it.

This shows that the June 2014 decision is flawed as containing an error of law and so it must quashed as it led to important evidence of the Claimant being rejected and the finding of “adverse credibility”. So even if Ms Anderson's approach is correct and there is a need to identify an error of law before quashing a decision, such an error exists as contrary to the approach of the CA, corroboration is not needed. In reaching that conclusion, I had not overlooked Ms Anderson’s submission that Elisabeth Laing J was not seeking to express a general principle, but I cannot accept that her remarks were limited to the specific facts of M. and she did not suggest that they should not have general application.

Incorrect Statements in June 2014 Decision

The case for the Claimant is that there were a number of erroneous criticisms of her evidence in the decision document which led to the evidence of the Claimant being rejected because of her “adverse credibility”. First, it is said that the report of Ms Carly Adams of 9 July 2013 did not refer to the Claimant being recruited by BX for sexual exploitation in St Lucia. This was incorrect as it was referred to in that report.

A second important error was that it was stated that all the material submitted before April 2014 stated that the Claimant had met B in person in St Lucia. This was not correct because Ms Pande in her report of November 2012 clearly states that the Claimant was approached by B through Facebook. She also set out the Claimant’s account of why she gave a false account. Ms Pande said in her expert opinion that this explanation was plausible. Third, the June 2014 decision points out that the Psychological report does not refer to BX specifically and this appears to be used to show that the Claimant’s account was not credible, but the report states that the writer asked the Claimant “to focus on specific events related to her reported experiences in the United Kingdom’”.

The CA relied on these matters to show why it made an “adverse credibility” finding in respect of the Claimant, which led to the rejection of her claim that she had been trafficked. These were significant errors as they showed that the decision makers approached the issue of the credibility incorrectly by relying on incorrect facts and they constituted a material factor in leading to the adverse credibility finding relating to the Claimant’s evidence. Ms Kaufmann contends that these errors amounted to a clear and established head of challenge to the decision of the CA and she relies on the statement of Carnwath LJ giving the judgment of the Court of Appeal in E v Secretary of State [2004] QB 1044, 1071 when he explained that:

“66.In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. …Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning”.

In my view, each of these requirements can be satisfied and so irrespective of whether the approach of Ms Kaufmann or Ms Anderson is correct, the CA’s decision must be quashed for this ground as well.

To summarize, there are a number of factors relevant to the process of ascertaining whether a person has been trafficked, including that:

The CA was faced with the difficult task of deciding whether the Claimant was trafficked. Notwithstanding the able submissions of Ms Anderson, there are many reasons which when considered individually or cumulatively show why the CA’s decision has to be quashed and they include among other matters that:

It follows that the CA must now consider whether the Claimant was trafficked in accordance with what has been stated in this judgment. Hopefully, this will be done speedily as I am concerned that the positive reasonable grounds decision was taken almost 4 years ago on 24 October 2011.