The State could also face potential actions for damages and it is possible convictions could be challenged.
The warning comes after Ms Justice Iseult O’Malley ruled in the High Court on Wednesday Ireland’s system of identifying people suspected of committing a crime as victims of human trafficking was “inadequate” — and not in compliance with European human rights law.
The ruling stemmed from a challenge by a Vietnamese woman, being prosecuted in relation to cannabis cultivation and who was refused a declaration by the State that she was a victim of trafficking.
EU law provides certain obligations on states concerning the rights of victims of human trafficking.
“It is a very significant judgment, particularly regarding the obligation to ensure non-punishment of victims of trafficking,” said Siobhán Mullally, Professor of Law at UCC.
“This is an obligation under European human rights law and the judgment brings into question whether appropriate procedures and mechanisms are in place to identify victims of trafficking — and that they are not punished for actions they are compelled to do.”
Prof Mullally, who specialises in human rights law, said there could be implications beyond this case: “It certainly could affect cases going through the system, where the person has made a claim of being a victim of trafficking and was not identified as such, or cases where the person has been identified as a victim of trafficking but a criminal procedure has continued.”
Gareth Noble, solicitor for the Vietnamese woman, agreed: “There could be major implications for people on remand or for new people from this day forth.”
He said he will be making a submission to the DPP to “discontinue” the criminal prosecution of his client, who he said has spent two and a half years on remand.
He said he would be making separate submissions to Ms Justice O’Malley on Friday week in relation to damages for his client. The judge mentioned this remedy on Wednesday and sought submissions from both sides on this and any other remedies.
Prof Mullally said there could be problems for the State in terms of damages where victims of trafficking are “wrongly arrested and detained” by the authorities.
“It could give rise to further claims, but at the moment that is still to be determined,” she said.
Prof Mullally and Mr Noble said it was unclear what, if any, impact might arise for those who have already been convicted of a criminal offence, saying it would be decided on a case-by-case basis.
Prof Mullally did point out that there was a case in Britain where a victim of trafficking had their criminal conviction overturned.
The Irish Human Rights and Equality Commission, which appeared as amicus curiae (friend of the court) in the High Court case, said the judgment found the State’s administrative scheme for identification and protection of suspected victims of human trafficking did not transpose the EU Directive properly.
Chief commissioner Emily Logan said: “In this regard, the Commission is recommending to the State, in establishing a new system of identification and protection, that it takes account not only of the EU Directive but those other human rights standards to ensure comprehensive protection of victims.”
Meanwhile, Migrants Rights Centre Ireland has called for an independent review of 70 cases of people who may have been smuggled into Ireland and forced to work in cannabis growhouses.