First successful miscarriage of justice application for a victim of trafficking under the amended Section 133 of the Criminal Justice Act 1988

Wednesday 26 July 2017

In R v Y [2015] EWCA Crim 123 No 2014/0986/B5 the Court of Appeal set aside Y’s conviction for possessing a forged document many years out of time. Y served a 12-month sentence pursuant to that conviction. The Court of Appeal accepted the Competent Authority’s post-conviction determination that this young Nigerian woman was a victim of trafficking, who suffered domestic servitude and extreme sexual violence. It found that her offending was inextricably linked to her trafficked status and that she should have had the protection of Article 26 (non-punishment provisions) of the Council of Europe Convention Against Trafficking in Human Beings 2005.

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Y was assisted by the Poppy Project, the Helen Bamber Foundation and Africans Unite Against Child Abuse (AFRUCA). One expert wrote,

“Ms Y is one of the most traumatised young women I have assessed at the Helen Bamber Foundation”.

Subsequently, Y made a claim for statutory compensation to the Miscarriage of Justice Application Scheme (MOJAS) for the 277 days she spent in prison and in immigration detention as well as for the associated psychiatric exacerbation.

This scheme provides a right to compensation for a person whose conviction has been reversed on the basis that that a “new or newly discovered fact shows beyond reasonable doubt” that there has been a miscarriage of justice, within the meaning of s.133 (1ZA) of the Criminal Justice Act 1988, as recently amended. A miscarriage of justice is now only established “…if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence…”

Y was accepted on to the scheme and following submissions made on her behalf to the Independent Assessor, the Justice Secretary awarded her the sum of £93,000.00, in full and final settlement and without any admission of liability. This sum comprised basic, aggravated and psychiatric damages. This is the first award to a victim of trafficking under the amended test that we are aware of.

Maya Sikand is a member of the claims against the police and public authorities, criminal appeals and public law teams at Garden Court Chambers. She was instructed by Philippa Southwell, Head of the Human Trafficking and Modern Slavery Department at Birds Solicitors.

The concise practitioner handbook Human Trafficking and Modern Slavery Law and Practice (Bloomsbury Professional) is forthcoming in January 2018, by Philippa Southwell of Birds Solicitors, Michelle Brewer of Garden Court Chambers and Ben Douglas-Jones of 5 Paper Buildings. Its cross-discipline approach offers practical guidance for criminal and immigration practitioners unfamiliar with each side of these practice areas. Contributors include Maya Sikand, Shu Shin Luh, Paramjit Ahluwalia and Gemma Loughran of Garden Court Chambers. Find out more and pre-order your copy.

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