Saturday, November 15, 2014

Committal judgments should be published

John Hemming MP
A summary of Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477 (14 November 2014).

This was essentially a challenge to the decision of Theis J in London Borough of Ealing v Connors to commit Margaret Connors to prison for 28 days for contempt of court, for breach of a collection order. The challenge took the form of an application for a writ of habeas corpus. Collins J refused to issue the writ, describing the application as being "hopeless" and "entirely misconceived". The matter was then appealed, and the President, giving the leading judgment in the Court of Appeal, agreed that the application was devoid of merit.

The application for the writ was issued by campaign group Justice for Families Ltd, whose Chairman is John Hemming MP. Mr Hemming appeared before Mr Justice Collins, but did not fare well, as this extract from the transcript indicates:
"MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.

MR HEMMING: Yes.

MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is --

MR HEMMING: Without the ability to contact her. That's right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don't know, do we.

MR JUSTICE COLLINS: No, we don't

MR HEMMING: And that's the difficulty of the situation of people in prison in secret --

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that's what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless --"
Sir James Munby P
In the appeal the President began by considering two preliminary points. Firstly, the issue of representation of a company at trial by an employee - Mr Hemming had failed to comply with the rules, but the court agreed to hear the appeal "as a matter of indulgence". Secondly, the issue of the locus standi of the appellant, upon which the President concluded: "In my judgment, this is not a case in which the appellant had any business applying for a writ of habeas corpus."

Moving on to the grounds of appeal (which can be found listed in paragraph 11), the President found that there were two very simple reasons why the appeal was quite hopeless:

Firstly, 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.

Secondly, 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.

In the circumstances, the appeal was dismissed.

That, however, was not the end of the matter. As the President pointed out, Mr Hemming's wider complaint related to the fact that, according to his own investigations, many committal judgments have not been published (on BAILII), as required by the practice guidance. "This, if true," said the President, "and every indication is that unhappily it is true, is a very concerning state of affairs." The President therefore reiterated the guidance, and gave further gudance regarding the listing of cases where there is no committal application before the court.

The President did, however, 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 [these were other arguments put forward by Mr Hemming] 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."

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