Scarth (The Living Man) v Governor of HM Prison Armley & Anor

On 25 August 2011 I heard an application by the Claimant for a writ of habeas corpus. He also applied for bail pending his appeal to the Court of Appeal. I was also asked to consider (by his McKenzie friend, Mr Jarvis) whether or not it was open to me to hear an application by the Claimant to purge his contempt. At the conclusion of the hearing I announced that the application for habeas corpus was refused; that the application for bail pending appeal was refused and that I declined to consider an application by the Claimant to purge his contempt. I also announced that my reasons for these decisions would be given in writing and handed down at the Royal Courts of Justice on 26 August 2011. I decided to take that course so that there would be a written record, available generally, of my reasons for making the orders which I announced in court.

The application for habeas corpus was made by a claim form issued on 12 August 2011. I was asked to consider the claim and the supporting papers as a matter of some urgency and on 15 August 2011 I made an order specifying that there should be a directions hearing on 18 August 2011. I directed that the Claimant should appear at that hearing by video link since it seemed to me to be the most efficacious way of ensuring that a meaningful hearing took place on 18 August.

On 18 August 2011 the directions hearing took place before me. The Claimant appeared by video link. I was addressed by the Claimant at some length and I was also addressed by his McKenzie friend, Mr Jarvis. At the conclusion of the hearing I directed that the application for habeas corpus should be heard on 25 August 2011; that the Claimant should, again, appear by video link and that the proceedings should be served not just upon the Governor of HMP Armley but also that the Secretary of State for Justice should be served.

At the hearing on 25 August 2011 I was addressed at length by the Claimant. Mr Jarvis also made representations on his behalf. I was assisted by a written skeleton argument and supporting documentation prepared by Ms Lambert. The Claimant was provided with those documents shortly before the hearing was due to take place and I accept that he had little time in which to respond to them. However, no application for an adjournment of the proceedings was made and in the light of the representations which were made both by the Claimant and Mr Jarvis I am quite satisfied that the Claimant suffered no prejudice by reason of the fact that the skeleton argument on behalf of the Defendants with supporting documents was not provided to him until shortly before the hearing.

A key document provided on behalf of the First Defendant was a copy of a court order dated 26 July 2011. This case has proceeded on the basis that on 26 July 2011 before HH Judge Rose, sitting in the Bradford Crown Court, the Claimant was found to be in contempt of court and sentenced to a term of 6 months’ imprisonment. A copy of the court order provided to me confirms that to be the case.

Despite the substantial documentation filed in support of the application for the writ of habeas corpus comparatively little detail was provided about what had occurred in the Bradford Crown Court which had caused HH Judge Rose to find the Claimant to be in contempt. However, during the course of his oral submissions the Claimant explained to me what had occurred. He told me that he had been sitting in the public gallery when it had been reported to the judge that he was recording the proceedings. My understanding is that there followed a hearing in which the judge concluded that this constituted a contempt of court and that for the contempt a sentence of 6 months’ imprisonment should be imposed. Ms Lambert was unable to provide any further information about what had occurred before the judge. She accepted, however, that the judge had apparently dealt with the alleged contempt summarily.

The Claimant was not represented by a lawyer and, according to the Claimant, he was unsure whether or not the recording equipment which he was using was actually working at any material time.

Set against this background the Claimant complains that the proceedings before HH Judge Rose were in contravention of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Claimant also alleges that the fact of his imprisonment and/or the conditions in which he is held constitute breaches of Articles 2, 3, 7, and 10 of the Convention. Mr Jarvis made short submissions in support of those contentions. The submissions made by the Claimant were much longer but the thrust of the reasons why he alleged that his imprisonment was unlawful was a complaint was that his human rights had been violated and that HH Judge Rose had been biased.

Superior courts, such as the Crown Court, have jurisdiction to deal summarily with all types of contempt, including contempt “in the face of the court”. Contempt “in the face of the court” has been interpreted broadly and is not restricted to contempts actually seen by the judge. I have no doubt that it was open to the judge to investigate whether a contempt of court had been committed once it had been reported to him that the Claimant was recording proceedings. The recording of proceedings before a court is capable of amounting to contempt if no permission has been obtained for that course. In my judgment it was open to the judge to conclude that contempt had been committed. Certainly, there is nothing in the papers before me to justify a conclusion that the judge acted unlawfully when he concluded that a contempt had been committed.

As I have said the Claimant was not represented before HH Judge Rose. There is no evidential basis put before me to suggest that the Claimant sought legal representation. I accept that it would have been desirable had a lawyer been appointed to represent the Claimant in what were summary proceedings for contempt. Nonetheless I am not persuaded that the fact that the Claimant was unrepresented of itself constitutes an infringement of his rights under Article 6. Throughout these proceedings the Claimant has displayed utter contempt for all lawyers and judges. In my judgment it is unreal to suppose that the Claimant truly wished to have a lawyer to represent him before HH Judge Rose.

I am also unpersuaded that the fact that the judge invoked the summary procedure infringed the Claimant's rights under Article 6. No authority was drawn to my attention for that proposition and in the absence of clear authority binding on me I am unpersuaded that I should find that the Claimant's rights under Article 6 of the Convention were breached by the procedure which was adopted at the Crown Court.

As I have said the Claimant complains about the conditions of his incarceration; he also complains that the First Defendant has failed to provide him with appropriate medication. It is also submitted that incarceration, of itself, is a breach of Article 3 given the Claimant's age (he is 85) and his state of health.

I accept the submissions of Ms Lambert that to the extent that this claim is directed to the conditions of the Claimant's imprisonment habeas corpus is not the appropriate remedy. If the Claimant has a genuine complaint about the conditions of his incarceration he should make a formal complaint through the procedure available to him at the prison. If his complaint remains unsatisfied he might consider an application for judicial review. In any event he may consider bringing a private law claim against the First Defendant.

I do not accept that the Claimant's rights under Articles 2 and/or 3 are infringed simply by virtue of his imprisonment given the state of his health and his age. As is obvious, it is regrettable that a man of 85 should find himself in the predicament which the Claimant faces. His age, alone, however, cannot be a reason for saying that his incarceration breaches his rights under Articles 2 and 3.

The Claimant has asserted to me that his health is poor. However, there is no medical evidence before me and throughout two hearings the Claimant seemed capable of robust argument and steely determination to put over his point. While, of course, that does not demonstrate that he is not suffering from some ill health it is a factor which is properly to be taken into account when seeking to determine whether it is proper to infer that such is the state of the Claimant’s health that his imprisonment constitutes breaches of Article 2 or 3. The reality is that there is simply no proper evidence from which it would be permissible to conclude that the Claimant’s rights under articles 2 and 3.

The Claimant mentioned Article 7 but nothing he said began to explain how there was a breach.

A contempt of court is an act or omission calculated to interfere with the due administration of justice. Unauthorised recording of court proceedings has long been held to be capable of constituting a contempt. The rights conferred by Article 10 are not unrestricted. There is no arguable basis that the Claimant's rights under Article 10 have been infringed.

The Claimant asserted that HH Judge Rose was biased. That was a theme he returned to time and time again in his submissions. There is no evidence to support this allegation. The Claimant seems to have formed the view that the action taken by the judge against him was explicable only by bias because, according to the Claimant, others have been engaged in recording court proceedings in other parts of the country but have not been dealt with in the same way. That is no basis for a conclusion of bias, real or apparent, on the part of the judge. The reality is that the Claimant considers all (or at the very least most) judges who have dealings with him are biased against him.

In the absence of any basis upon which it would be proper to conclude that the Claimant has been imprisoned unlawfully or that his imprisonment has become unlawful I could not grant the writ of habeas corpus. As I sought to point out to the Claimant in the hearing on 15 August 2011 his interests are much better served by an appeal to the Court of Appeal Criminal Division. I am satisfied from documentation referred to by the Claimant and sent to me in the post either by the Claimant or persons acting on his behalf that the Claimant has lodged an appeal at the Court of Appeal. It is that court, in my judgment, which should adjudicate upon whether or not the finding of contempt of court and/or the sentence imposed for the contempt should remain.

I do not pretend that I have dealt with every point which the Claimant made during the course of a speech which lasted about 45 minutes. I have, however, dealt with all of the points made which I considered had any bearing upon whether the Claimant was detained lawfully.

During the course of his oral representations Mr Jarvis raised the possibility of the Claimant applying to me to purge his contempt. In some ways this was a surprising application since in his own representations to me the Claimant demonstrated nothing but contempt for the order made by HH Judge Rose and, indeed for the judge himself. Nonetheless I felt it my duty to consider this possibility. I did so upon the assumption that I had jurisdiction to entertain an application although Ms Lambert was not able to confirm that I enjoyed such jurisdiction. I reached the conclusion that assuming I had jurisdiction to deal with the matter I should decline to do so. It seemed to me that the appropriate forum for any such application would be the judge who had found the contempt proved and who was, far better than me, in a position to judge the seriousness of the contempt and the genuineness of the Claimant's application to purge his contempt. Alternatively, such an application could be made to the Court of Appeal Criminal Division. It is a possible outcome of the appeal that the court will uphold the finding of contempt and also determine that a sentence of six months’ imprisonment was an appropriate one. Even in those circumstances, however, the court might be prepared to entertain an application to purge the contempt. I raise that possibility for the Claimant to consider. Whether he makes such an application and whether the Court of Appeal entertains it is not for me to determine.

I satisfied myself that the Claimant has instituted an appeal to the Court of Appeal Criminal Division. I directed that the hearing of his appeal should take place on the first open date after 2 September 2011. In those circumstances I declined to grant bail. Bail pending an appeal against conviction/sentence is rarely granted especially when there is a real prospect that the appeal will be heard in early course. None of the circumstances surrounding this case persuade me that it was appropriate for me to grant bail. There was little information available to me about the circumstances in which the contempt had been committed and I had no information about the Claimant’s antecedent history. I should say for completeness that I assumed I had jurisdiction to grant bail not as the judge who had determined the application for habeas corpus against the Claimant but, rather, as a judge of the High Court who is authorised to sit in the Court of Appeal Criminal Division and to whom an application (albeit very informally) had been made for bail pending appeal.