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Our Kate Aubrey-Johnson acts in case that clarifies the only route of appeal for victims of modern slavery

Saturday 30 January 2021

Our Kate Aubrey-Johnson, of the Garden Court Chambers Youth Justice & Child Rights Team, represented H, led by Francis FitzGibbon QC and instructed by the Howard League for Penal Reform.

H v Director of Public Prosecutions [2021] EWHC 147 (Admin)

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In this case, the Howard League for Penal Reform sought clarification as to the remedy for a child who had been a victim of trafficking when the offences were committed; but was neither advised of the availability of the Modern Slavery Act 2015 section 45 defence or referred to the National Referral Mechanism (“NRM”). 

H, who was 17, had pleaded guilty in the youth court to possession of a bladed article and possession with intent to supply class A drugs (heroin and cocaine). He had been arrested in circumstances described as ’street dealing’. He was committed for sentence and received an 18-month detention and training order. He contacted the Howard League for Penal Reform who sought a referral to the NRM, an assessment that should have been sought on his arrest and subsequently received a conclusive grounds decision that he had been the victim of modern slavery. 

The appeal by way of case stated heard by the Lord Chief Justice and Mr Justice Bryan explored whether there was a remedy under the ’slip rule’, section 142 of the Magistrates’ Court Act 1980, to re-open plea given the broader welfare considerations in cases involving children and the wider duties to protect victims of trafficking. The Divisional Court ruled that section 142 of the 1980 Act was not available where a defendant had been sentenced by the Crown Court. Section 142(2) has no application once the Crown Court has passed sentence as it did not confer the power on the Magistrates’ Court to set aside sentences imposed by the Crown Court or Court of Appeal (R v RD [2019] EWCA Crim 1545 followed).

The judgment then went on to consider whether section 142 of the Magistrates’ Court Act 1980, the power to remedy mistakes, provides a mechanism to enable victims of trafficking to re-open their plea in circumstances similar to H. The judgment considered that the circumstances of this case did not fall within the proper scope of section 142(2) of the 1980 Act at all. 

This case helpfully clarifies the only route of appeal for victims of modern slavery, such as vulnerable children and young adults groomed into street dealing by country lines gangs, who plead guilty to offences because they are not advised of the availability of the section 45 defence. The remedy is to make an application to the Criminal Cases Review Commission (see R v Nori and R v YY (Practice Note) [2016] 1 Cr App R 28, 435 at 446 per Sir Brian Leveson). 

Following this judgment, the Howard League for Penal Reform is working with the Criminal Cases Review Commission (CCRC) to make the process of applying to the CCRC as accessible as possible, so there is a clear referral mechanism for children and young adults in situations as arose in this case. 

Useful links: 
Make a referral to the Criminal Cases Review Commission
Contact the Howard League for Penal Reform

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