Ms Justice Iseult O’Malley made the finding in a challenge by a Vietnamese woman allegedly found locked inside a cannabis grow-house in Dublin, who is due to be tried for a criminal offence, arising out of a refusal by the State to grant her a declaration she is the victim of human trafficking.
The judge held the mechanism used in Ireland to recognise if a person suspected of committing a crime is a victim of human trafficking “must be held to be inadequate”. The mechanism relates to an EU directive which imposes certain obligations on states concerning the rights of human trafficking victims.
The judge said the mechanism did not deal clearly with the interaction between the application for recognition as a trafficking victim and the criminal investigation into the woman’s alleged activities. Ms Justice O’Malley said there is “a necessity for rules or protocols, if not legislation, establishing what is to be done in circumstances where the person claiming to be a victim is also suspected of criminal activity”.
Following the judgment, the woman’s solicitor Gareth Noble said he intends to ask the DPP “not to proceed with the prosecution”. The woman is due before Dublin Circuit Criminal Court next month.
In 2012, the woman, who cannot be named for legal reasons, was discovered by gardaí during a raid on a suspected growhouse in north Dublin. Cannabis worth some €1m was found. She was charged with unlawful possession of cannabis and having it for the purposes of sale or supply. She has been remanded in custody at the Dóchas Women’s Centre since her arrest.
The woman, who at the time of her arrest could not speak English, claimed she was a trafficking victim and should not be prosecuted. In September 2013, the Gardaí said there was insufficient evidence to conclude she was a trafficking victim.
In proceedings against the Chief Superintendent of the Garda National Immigration Bureau, the DPP, Ireland and the Attorney General, she said the refusal breached her rights, including her rights to fair procedures. She claimed her rights under the EU directive were breached, and the directive had not been properly transposed into Irish law.
The application was opposed, and it was claimed the directive had been adequately transposed by means of administrative arrangements.
In her judgment Ms Justice O’Malley said under the EU directive the State has an obligation to have in place a mechanism to ensure prosecuting authorities have a discretion not to punish or prosecute victims of trafficking suspected of committing a criminal offence. It must also have a mechanism to identify such victims accused of criminality. The judge adjourned the matter to later this month to hear further submissions arising out of her decision.
Emily Logan, chief commissioner of Irish Human Rights and Equality Commission, welcomed the judgment which, she said, “makes it clear that the State must not only take steps to eliminate human trafficking, but must also prioritise the identification and protection of the victims of this extremely serious form of exploitation”.