Justice for Families Ltd v Secretary of State for Justice

This is in form a challenge to the refusal by Collins J, sitting in the Administrative Court on 6 November 2013, to issue a writ of habeas corpus. It is in substance a challenge to the decision of Theis J, sitting in the Family Division on 11 October 2013, to commit Margaret Connors to prison for 28 days for contempt of court. Collins J described the application for the writ as being, in the circumstances, “hopeless” and “entirely misconceived”. I agree. The challenge to Theis J’s decision is equally devoid of merit.

The history of the proceedings before Theis J is set out in an extempore judgment she delivered on Friday 11 October 2013 and which, after being transcribed, was placed on BAILII (where it is freely available to all) on 12 November 2013: London Borough of Ealing v Connors[2013] EWHC 3493 (Fam). The background, which I need not repeat, is set out in paragraphs 1-9 of Theis J’s judgment.

On Tuesday 8 October 2013 (Theis J, judgment paragraph 9), on an application by the London Borough of Ealing, Theis J made a collection order in standard form in relation to two missing children: A, born in 1999, and B, born in 2001. A and B are the daughters of Margaret Connors. Paragraph 1 of the collection order ordered that the children be placed into the care of the local authority. Paragraph 2 provided that:

At the same time as making the collection order, Theis J also gave a direction to the Tipstaff in standard form. Paragraph 1 directed:

The collection order was executed that evening by police officers acting in accordance with the direction given to the Tipstaff. They arrested the mother in pursuance of the power of arrest contained in paragraph 3 of the direction. In accordance with paragraph 3, the mother was brought before the court, Theis J, the following morning, Wednesday 9 October 2013 (judgment, paragraphs 10-13). The mother was represented by counsel. At the end of the hearing, Theis J remanded the mother in custody to HMP Holloway overnight until the next hearing, which she fixed for 9.30am on Thursday 10 October 2014. At the end of the hearing on 10 October 2013 at which the mother had again been represented by counsel (judgment, paragraphs 14-16), Theis J again remanded the mother in custody overnight until the next hearing, which she fixed for 9.30am on 11 October 2013.

At the hearing on Friday 11 October 2013, which, as the order makes clear, was in open court, Theis J refused an application by the mother’s counsel for an adjournment (judgment, paragraph 16). She found the mother guilty of contempt of court (judgment, paragraphs 24-27):

Having then heard submissions in mitigation by the mother’s counsel (judgment, paragraphs 28-31), Theis J proceeded to sentence (judgment, paragraph 33):

In accordance with her judgment, the committal order Theis J made directed that the mother was to be committed to prison “for a period of 28 days from the date of her arrest”, that is from 8 October 2013. Contemnors are entitled to remission of one-half of their sentence. The mother, having, so far as I am aware, made no application to purge her contempt in the meantime, was accordingly released from prison on, I assume, 21 October 2013.

On 1 November 2013, the appellant, Justice for Families Limited, applied for a writ of habeas corpus ad subjiciendum. The application was supported by a witness statement dated 1 November 2013 by John Hemming, who described himself as a director of the company who had been “appointed to represent the company as a Litigant in Person.” In his statement Mr Hemming said:

The application came before Collins J on 6 November 2013. He dismissed the application. He gave no judgment, but the reasons for his decision appear clearly enough from the transcript of the proceedings, which begins with the following exchange:

The appellant’s notice was filed on 20 November 2013. I set out the grounds of appeal verbatim:

The appellant’s notice was supported by a skeleton argument prepared by Mr Hemming which conceded that “The secret prisoner has now been identified and released” but asserted that “the refusal of the application for a writ of Habeas Corpus raises important points of law and although … the application would necessarily fail through the release of the prisoner the issues as to the lawfulness of such imprisonments need to be considered.”

Permission to appeal is not required in a habeas corpus case. But the papers were put before Davis LJ as supervising judge. He directed that the appellant should be invited (as it was by a letter from the court dated 5 February 2014) to consider carefully:

The appeal was originally listed for hearing on 15 April 2014. Neither Mr Hemming nor anyone else was present to prosecute the appeal. Inquiries elicited the response that, so it was said, neither the appellant nor Mr Hemming had received notice of the hearing. The court (Sir James Munby P, Lewison and McCombe LJJ) decided to re-fix the appeal. The re-listed appeal came on for hearing before the court (Sir James Munby P, Sharp and Vos LJJ) on 14 October 2014. The appellant was represented by Mr Hemming. The respondent was neither present nor represented.

Before turning to the substance of the appeal, there are two preliminary points that require consideration.

CPR 39.6 provides that:

The letters dated 4 November 2013 and 18 February 2014, signed, it is to be noted, by Mr Hemming, are inadequate. Neither complies with paragraph 5.2(4). Each is, in reality, no more than an assertion by the signatory that he is acting with the agreement of the board, an entirely self-serving statement unsupported by any independent evidence that he does indeed have that authority. CPR PD 30A, para 5.2 is there to be complied with. There is no excuse in the present case, where the court had specifically directed attention to it. As a matter of indulgence we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.

We have not overlooked the principle, explained in The Law of Habeas Corpus, Farbey and Sharpe, ed 3, 2011, 238-239, that applications for habeas corpus are usually required to be made by counsel (now, a qualified advocate with higher court rights). Our agreement to hear Mr Hemming in this case is not to be taken as in any way weakening that long-established practice.

In the nature of things, the court must be willing, where circumstances require, to hear an application for habeas corpus brought not by the prisoner but by some third party. For if the court refused to hear such a third party application, a prisoner unable to instruct someone to act for him would be denied a remedy and left to languish in what might be unlawful confinement. As is said in The Law of Habeas Corpus, 237, “If third parties were not allowed to initiate proceedings, a captor acting unlawfully would only have to hold his prisoner in especially close custody to prevent any possibility of recourse to the courts.”

Thus it is clear that it is possible for a third party to make an application for habeas corpus even though acting neither as the agent of the prisoner, nor on his instructions, nor, indeed, even with his knowledge: see, for example, The Case of the Hottentot Venus (1810) 13 East 195, In re Price (1860) 2 F&F 263, (Footnote: ¹) and Re Antoni Klimowicz (1954) unreported, (Footnote: ²) to each of which Mr Hemming helpfully referred us. But as the old case of Ex p Child(1854) 15 CB 238 shows, the right of a stranger to apply for habeas corpus is necessarily kept within bounds. As Jervis CJ said:

The principle in Ex p Child is now to be found stated in RSC Order 54, rule 1, as set out in Schedule 1 to the CPR:

In what circumstances, then, is a third party application appropriate? Given the vital importance of the remedy and the infinite variety of possible situations – as the facts of each of the four cases I have just referred to so strikingly illustrate – it would be unwise to be too prescriptive. The court must be flexible. That said, I would expect most cases where a third party application is appropriate to be either (as in Price and Klimowicz) cases where the prisoner is incommunicado or (as in The Hottentot Venus) cases where, to quote the language of The Law of Habeas Corpus, 238, “the impediment preventing the prisoner from acting [is] ignorance or disability rather than close physical custody.”

In the present case neither principle applies. The mother was not held incommunicado. There was no impediment to her acting: she had counsel. Collins J was fully justified in expressing himself as he did. Mr Hemming’s complaint that the mother was being held, “incommunicado”, as a “secret prisoner” whose name was not known, was true only in the sense that neither the appellant nor Mr Hemming had made any effective attempt to discover her name.

As Collins J correctly observed, Mr Hemming could have obtained a copy of the committal order on application to the Clerk of the Rules. FPR 29.12(2) provides that:

As to that I propose to say only this. Plainly the court cannot be expected to embark upon an extensive and time-consuming trawl of its files to identify an order where the applicant is unable to identify what it is he is seeking. But here, Mr Hemming knew both the date of the committal order and the name of the judge who had made it. An applicant seeking a copy of the order, to which, I emphasise, he is entitled under FPR 29.12(2), should not be sent away empty-handed merely because he does not know the number of the case or the names of the parties. The court can, and should, supply a copy of a committal order, even if the applicant cannot provide those details, where the applicant is able to provide sufficient details of the case to enable the order to be located by the court without undue difficulty, for example, as here, the date of the order and the name of the judge.

I add, for the avoidance of doubt, that when I refer to the court in this context I mean the court office. Applications under FPR 29.12(2) should be directed to the appropriate court office and not to the judge or judge’s clerk.

In my judgment, this is not a case in which the appellant had any business applying for a writ of habeas corpus. Collins J was correct to take the point. Davis LJ was fully justified in raising the question. Mr Hemming’s riposte, in his letter of 18 February 2014, namely that the principle of locus standi does not apply to applications for habeas corpus, fails to meet the point.

There are, in my judgment, two very simple reasons why this appeal is quite hopeless. Each provides a complete answer to the appeal, just as each provided a complete answer to the application before Collins J.

In the first place, and as Collins J correctly explained, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal: see ex p Hinds [1961] 1 WLR 325, Linnett v Coles [1987] QB 555 and West v HM Prison Bure[2013] EWCA Civ 604. As Lord Goddard CJ said in Re William Oswald Featherstone (1953) 37 Cr App R 146, 147:

Secondly, and as I have already pointed out, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end: Barnardo v Ford [1892] AC 326, and (an authority supplied by Mr Hemming) In re J M Carroll (An Infant) [1931] 1 KB 317, 327. As Lord Watson put it in Barnardo (page 333):

Mr Hemming’s response to the first point is that the hearing before Theis J on 11 October 2013 was not a hearing by a court of competent jurisdiction. In support of this surprising contention he makes two submissions: first, that the court did not have “jurisdiction” because Theis J was acting both as prosecutor and as judge; secondly, that the court was not “competent” because the hearing was not listed.

As elaborated in his skeleton argument Mr Hemming asserts – perhaps, more accurately, assumes – that, as he put it, the “court” had “moved a motion for committal” and that the court was “sitting in judgment on a motion of its own initiative.” This is simply wrong as a matter of fact. The matter was brought back to court following and because of the arrest of the mother by the Tipstaff. Theis J was sitting to determine whether or not, as reported to the court by the Tipstaff, the mother had breached the collection order and thereby committed a contempt of court. To be fair to Mr Hemming, as soon as we had explained the process in relation to collection orders, he readily accepted that there was no substance in his complaint that the court lacked jurisdiction. Quite plainly, in my judgment, Theis J had jurisdiction on 11 October 2013 in the sense in which Lord Goddard CJ was using the word.

Mr Hemming supports his alternative complaint that the court was not “competent” by reference to Article 6 of the Convention. The argument, in my judgment, is quite hopeless, whether or not bolstered by reliance upon Article 6. The fact is that Theis J was, as the expression was used by Lord Goddard CJ, sitting on 11 October 2013 as a court of competent jurisdiction. She was sitting in public. The mother was present and represented. The submission that an otherwise competent court was not competent because the hearing was not listed is, with all respect to Mr Hemming, devoid of all merit. I should add that I would have come to precisely the same conclusion even if, contrary to the facts, the hearing on 11 October 2013 had been held in private when it should have been in public: see McPherson v McPherson[1936] AC 177, where the fact that a divorce case which should have been heard in open court was heard in private rendered the resulting decrees nisi and absolute voidable only and not void.

Mr Hemming’s response to the second point – that habeas corpus does not lie once the prisoner has been released – was, as we have seen, set out in his skeleton argument, which I have already quoted. In short, he asserts that the case raises what he calls important points of law. He elaborated this in his letter of 18 February 2014:

I shall return to address these arguments below. Whatever their merit, they do not, however, justify the commencement and pursuit of an application for habeas corpus after the prisoner has been released.

Thus far, Mr Hemming’s challenge has been to what took place before Theis J on 11 October 2013. But he also mounts quite separate challenges to what took place before Collins J on 6 November 2013. As I understand what is said in the grounds of appeal and in his skeleton argument. Mr Hemming has three complaints:

The hearing before Collins J was, he says, “procedurally unlawful” because Collins J had a private conversation with Theis J on the telephone before coming into court. There is, in my judgment, no merit in this complaint. Given the exiguous materials placed before the Administrative Court by the applicant, and given the urgency which obviously attaches to any application for a writ of habeas corpus, Collins J was acting entirely appropriately and with complete propriety in seeking information from Theis J. It is clear from the transcript of the hearing before Collins J that he made no secret of the fact that he had spoken to Theis J. He volunteered the information and no doubt would have elaborated on what was said if Mr Hemming had asked – but he did not. There is nothing in the point.

Collins J should, says Mr Hemming, have obtained the committal order or, in the alternative, issued a writ of habeas corpus as a means of obtaining the committal order, as I understand what is being said, so as to ensure that the committal order itself was “in order”. I do not agree. Linnett v Coles [1987] QB 555, to which I have already referred, was a case where the committal order – an order of the High Court – was “unlawful on its face”. Yet the Court of Appeal held that the proper remedy was appeal, not habeas corpus. So examining the order made by Theis J on 11 October 2013 to detect if it was “in order” – in fact, as we now know it was – would have served no useful purpose in the context of an application for habeas corpus.

The grounds of appeal assert that the “court order” – I read this as a reference to the order made by Collins J – “reports that the decision was made on paper.” I simply do not understand this. Both the hearing before Theis J on 11 October 2014 and the hearing before Collins J on 6 November 2013 took place in court – indeed, in open court – and each proceeded on the basis of oral submissions. Neither order contains any words supporting what is said in the grounds of appeal.

For all these reasons I conclude that Collins J was entirely right to proceed as he did and for the reasons he gave. The appeal must therefore, in my judgment, be dismissed.

What really lies behind both the application to Collins J and the appeal to this court would appear to be the concerns articulated by Mr Hemming in the passage in his letter of 18 February 2014 which I have already set out.

I have referred to Practice Guidance (Committal Proceedings: Open Court)[2013] 1 WLR 1316, issued on 3 May 2013 by Lord Judge CJ and by me. That was supplemented by Practice Guidance (Committal Proceedings: Open Court) (No 2) [2013] 1 WLR 1753, issued by me on 4 June 2013, and by President’s Circular: Committals 2014 Family Court Practice 2976, issued by me on 2 August 2013.

For present purposes I draw attention to three aspects of this Guidance.

First, Practice Guidance (Committal Proceedings: Open Court)[2013] 1 WLR 1316 reiterated (paragraph 1) the “fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.” It emphasised (paragraph 4) that in those exceptional cases in which a committal application could properly be heard in private and where a person had been found to have committed a contempt, the court “must state in public”:

Secondly, Practice Guidance (Committal Proceedings: Open Court)[2013] 1 WLR 1316 spelt out (paragraph 6) that:

Thirdly, Practice Guidance (Committal Proceedings: Open Court) (No 2) [2013] 1 WLR 1753 set out (paragraph 2) the way in which a committal application in a family case should be shown in the public court list:

The latest figures from the Ministry of Justice of receptions into prison for contempt of court, show that in the twelve months from April 2013 to March 2014, a total of 116 contemnors arrived in prison (monthly totals 15, 11, 8, 13, 14, 7, 12, 7, 6, 8, 7, 8). These figures are broken down into County Court (aggregate total 36), Crown Court (5), Magistrates (4), High Court (5) and “Not recorded” (66). Mr Hemming’s point, which appears to be borne out by an analysis he has conducted for us of the committal cases which appear on BAILII, is that for a very large number of these committals there is no judgment to be found on BAILII. This, if true, and every indication is that unhappily it is true, is a very concerning state of affairs.

Analysis of the problem, and location of responsibility, is not of course assisted by the surprising fact that the available statistics record the type of committing court in less than 50% of the cases: in 66 out of 116 cases the committing court is not recorded.

Mr Hemming, as we have seen, draws attention to the fact that the Official Solicitor no longer has any responsibilities in relation to contemnors. He suggests that some additional protection is needed for what he calls the secret prisoner, who is at present, he says, insufficiently protected.

The duties of the Official Solicitor in relation to contemnors had their informal origins even before 1842, when they were put on a formal, albeit non-statutory, basis following the appointment of J J Johnson as Solicitor to the Suitors Fund (as the Official Solicitor was then called). They were put on a statutory basis by the Court of Chancery Act 1860. From 1963 they were to be found spelt out in a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

It is not the function of the court to assist Mr Hemming in his campaign and beyond recording his submissions there is, in my judgment, little that can appropriately be added to what I have already said. I can, however, properly make the following points:

I draw the attention of all judges sitting in family courts to what I have said in paragraph 42 above. In particular, I emphasise that in every case in which a committal order or a suspended committal order is made, the judgment must be transcribed and published on the BAILII website “as soon as reasonably practicable” and, I stress, whether or not anyone has requested this. I suggest that in every case the judge, having given judgment, should immediately direct that a transcript be ordered the same day and prepared on an expedited basis.

In collection (or location) order cases where, as here, there is no committal application as such before the court, the matter should be shown in the public court list as follows:

In cases where it is not possible to publish these details in the public court list in the usual way the day before (for example, because the prisoner is produced at court by the Tipstaff on the morning of the hearing, having been arrested overnight), the following steps should be taken:

Where, as in the Royal Courts of Justice, the public court list is prepared and accessible in electronic form, it should be updated with the appropriate entry as soon as the court becomes aware that the matter is coming before it. This can be done very quickly. (Footnote: ³)

Notice of the hearing should at the same time be placed outside the door of the court in which the matter is being, or is to be heard, and at whatever central location in the building the various court lists are displayed.

The Press Association should be notified by email from the Judicial Office of the fact that the hearing is taking or is shortly due to take place.

This is primarily a matter for others, but consideration might appropriately be given to ensuring that the statistics of the receptions of contemnors into prison accurately record in all cases details of the committing court. There ought not to be any insuperable obstacle to obtaining this information, because in every committal for contempt there will be a warrant identifying the sentencing court.

I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.

I agree.

I also agree.