Ryan Harvey v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon |
| Judgment Date | 29 January 2021 |
| Neutral Citation | [2021] EWHC 147 (Admin) |
| Date | 29 January 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/435/2020 |
[2021] EWHC 147 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
The Hon Mr Justice Bryan
Case No: CO/435/2020
Francis FitzGibbon QC and Kate Aubrey-Johnson (instructed by the Howard League for Penal Reform) for the Appellant
Benjamin Douglas-Jones QC and Andrew Johnson (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 17 November 2020
Approved Judgment
This is the judgment of the court, to which we have both contributed. Ryan Harvey appeals by way of case stated from the order of District Judge Barron made at Margate Magistrates' Court of 19 October 2019 refusing his application to direct that his case be heard again pursuant to section 142(2) of the Magistrates' Courts Act 1980 (“the 1980 Act”). He entered unequivocal guilty pleas and was committed to and sentenced by the Crown Court. He sought to set aside his guilty plea to enable him to adduce evidence and argue a defence under section 45 of the Modern Slavery Act 2015 (“the 2015 Act”). Section 142 of the 1980 Act is headed “power of magistrates' court to re-open cases to rectify mistakes etc.” As material it provides:
“(1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.
(1A) The power conferred on a magistrates' court by subsection
(1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—
(a) the Crown Court has determined an appeal against—
(i) that sentence or order;
(ii) the conviction in respect of which that sentence or order was imposed or made; or
(iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or
(b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.
(2) Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct.
(3) Where a court gives a direction under subsection (2) above—
(a) the conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; and
(b) section 10(4) above shall apply as if the trial of the person in question had been adjourned.
…
(5) Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs.”
The questions stated for the opinion of the High Court by the judge are as follows:
i) Does the Magistrates' Court have any power to allow a plea of guilty to be vacated under section 142 of the Magistrates' Courts Act 1980 once the defendant has been sentenced in the Crown Court?
ii) In the circumstances of this case was I correct to refuse to vacate the defendant's guilty pleas pursuant to section 142(2) of the Magistrates' Courts Act 1980?
Ryan Harvey, who was then 17, entered unequivocal pleas of guilty before Canterbury Youth Court to offences including possession of a bladed article (a knife) in a public place and possession of significant amounts of heroin and cocaine with intent to supply (street dealing). He was committed to Canterbury Crown Court for sentence. A pre-sentence report was obtained and on 2 August 2017 he was sentenced to a detention and training order of 18 months.
The Howard League for Penal Reform later requested on his behalf a retrospective National Referral Mechanism (“NRM”) assessment which was made and submitted by the Youth Offender Service on 7 February 2018. That is concerned with aspects of “modern slavery” which may be separate from proceedings in a criminal court but the National Crime Agency (the relevant body for the purposes of the legislation) reached a “conclusive decision” (a term of art in the legislation) in April 2018 that he was the victim of modern slavery. That conclusion does not bind the Crown Prosecution Service or a court. On 2 March 2018 Ryan Harvey was released from custody. After his release he was involved in an incident on 26 May 2018 which led to charges of dangerous driving and other related offences. The new offences were tried at the Crown Court and a defence under section 45 of the 2015 Act was advanced. On 2 April 2019 the jury returned a not guilty verdict.
The case advanced on behalf of Mr Harvey before the judge was that it was in the interests of justice to have the earlier convictions set aside on the basis of the decision that he was a victim of modern slavery and in the light of the subsequent acquittal in the Crown Court on later charges. The judge concluded that he was being asked to use section 142 not to correct any error, defect or mistake, but rather to exercise a general power of review, which he concluded was not permissible. He referred to R v RD [2019] EWCA Crim 1545 as authority against the argument advanced by Mr Harvey. The judge did not think that there had been an obvious injustice in this case but would have reached the same conclusion if he thought otherwise. There was an available remedy, namely an application to the Criminal Cases Review Commission.
In R v RD the defendant had been unlawfully committed from the Youth Court and then sentenced in the Crown Court. Fancourt J, delivering the judgment of the Court of Appeal Criminal Division at [33] said:
“The power under section 142 of the Magistrates' Courts Act is a power to rectify errors and defects, to avoid the need for unnecessary appeals to the Crown Court or the High Court, as emphasised by the Divisional Court in R(Williamson) v City of Westminster Magistrates' Court [2012] EWHC 1444 (Admin); [2012] 2 Cr App R 24. The power is not a general power of review; nor does it confer a function properly performed by an appellate court. It is not a power that can properly be exercised by a Magistrates' Court, as the Youth Court did in this case, where there has been a committal for sentence and the Crown Court has passed sentence for the offences in question. The orders made by the Youth Court … were therefore unlawful.” (Emphasis added)
Mr FitzGibbon QC, for Mr Harvey, submitted that the conclusion we have emphasised in the passage was obiter and therefore does not bind us. The essence of his submission is that the language of section 142(2) of the 1980 Act is wide enough to encompass the mistake he contends for here. The mistake was Mr Harvey's in failing to advance a defence in the Youth Court which was available to him. The language of section 142 is, he submitted, wide enough for the effect of directing a new trial to encompass setting aside the sentence subsequently imposed by the Crown Court. Indeed, Mr FitzGibbon accepted that the effect of such a direction would be to set aside a sentence upheld or reduced in the Court of Appeal Criminal Division. He accepted that the approach he advocated would allow section 142(2) to be used, if the interests of justice test were satisfied, to set aside unequivocal guilty pleas to offences of violence where a defendant had failed to advance a defence of self-defence, for example. The same arguments would support the use of section 142(2) after a trial where a defence was not advanced. In this case, however, the conclusion of the National Crime Agency that Mr Harvey has been the victim of modern slavery shows that he would be able to adduce evidence at a trial (there being an evidential burden on him to raise the defence) which may or may not succeed. He submitted that to require an application to the Criminal Cases Review Commission, which if successful would result in the case being referred to the Crown Court, was cumbersome and would only give him one bite of the cherry, because there would be no onward appeal if he lost. If the case were heard again in the Magistrates' Court and he lost, he could appeal to the Crown Court. Mr FitzGibbon submitted that...
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