Family pressure group “had no business” in applying for habeas corpus on behalf of mother

18 November 2014 by Rosalind English

Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477 – read judgment

An  application for habeas corpus by a pressure group was completely “hopeless” and “entirely misconceived”. The appellant’s challenge to the decision of the judge below was equally devoid of merit.  Third party applications are only appropriate where the prisoner is incommunicado or where the impediment preventing the prisoner from acting is ignorance or disability. It was entirely inappropriate in these circumstances, where the prisoner had been represented by counsel throughout the proceedings which resulted in her imprisonment, or where her detention had already ended before the application for habeas corpus was made.

The principle of “habeas corpus”

The right of a stranger to apply for habeas corpus is a rather singular thing since it does not depend on that third party to be instructed by the prisoner on behalf of whom the application is being made, nor even on the knowledge of the prisoner that someone has decided to act in his/her interest in such a way.

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.”

Nevertheless, the process is limited by civil procedure rules which require an employee representing a company to provide evidence that he or she has the authority of the managing director of that company  (there was no such evidence in this case). “As a matter of indulgence” , said the President of the Family Division, “we agreed to hear the appeal. Our indulgence on this occasion is not to be taken as any precedent.”

Furthermore, such a third party application for habeas corpus would only be appropriate where the prisoner was incommunicado or where the impediment preventing the prisoner from acting was ignorance or disability rather than close physical custody. None of those applied to the instant case.

Factual background

The writ related to a mother of two daughters, an older son and seven half siblings from a previous relationship, who was subject to a collection order in relation to her daughters, who had gone missing in September 2013. One of the girls suffered from meningitis which required regular medication, but she had missed several of her appointments.  There had also been lack of school attendance by both prior to their disappearance, and evidence of domestic violence at home, leading to a serious assault by the father and the older brother on one of the girls.  The mother is alleged to have made clear to the social worker that she would not inform the Local Authority of the whereabouts of the children as she did not agree to them being in care.

The collection order was duly issued, requiring her to deliver the children to the charge of the tipstaff and/or inform the tipstaff of their whereabouts. The mother failed to comply, and was sentenced to 28 days’ imprisonment for contempt of court. That hearing took place in open court and she was represented by counsel. However, her name and the committal had not appeared in the public court list.

The first attempt by the appellant company to apply for habeas corpus for the mother (of whose identity and whereabouts it had no clue, let alone anything about the background to the case) met with this robust response from Collins J:

[the girls’ mother] refused to disclose their whereabouts or told untruths about where they were, and that is what led to the judge deciding as she did. Now there is no question but there is jurisdiction to impose a penalty, including imprisonment, for contempt of that nature because it is a contempt which is an interference with the administration of justice. And, of course, the whole background to this was the protection of children who otherwise would be at risk. Habeas corpus in these circumstances is an entirely misconceived remedy. There is a right of appeal. She was represented, she had legal aid, and she automatically will, even despite the government of which your party is a member and the removal of legal aid in many circumstances, still legal aid exists for an appeal against a committal order because liberty is at stake. So it is difficult to see what really you are doing here.

The Court of Appeal dismissed the appeal.

Reasons behind the Court’s ruling

The reason why a court should hear an application for habeas corpus brought by a third party rather than the prisoner, even if that third party were not acting as agent for the prisoner, is that it would otherwise lead to the injustice of a prisoner being denied a remedy for unlawful confinement (say, for example, if that prisoner were unable to instruct someone to act for them).

But none of the circumstances justifying third party habeas corpus standing applied to the instant case. The children’s mother had not been held incommunicado and there was no impediment to her acting as she had been represented by counsel. The appellant organisation could not use habeas corpus to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case was to appeal. The application was rendered even more otiose by the fact that the mother had been discharged from prison on the expiry of her sentence,  before JFF’s application for habeas corpus was made. Since the only issue on an application for habeas corpus was to determine the legality of the detention, habeas corpus could not lie if the detention was already at an end .

As for the complaint that the mother was being held “incommunicado” as a “secret prisoner”, this was only true in the sense that the appellant had not made any effective attempt to discover her name. They could have obtained a copy of the committal order on an application to the Clerk of the Rules under the Family Procedure Rules 2010 r.29.12(2).  An applicant seeking a copy of the order under r.29.12(2) should not be sent away empty handed by the court office merely because he did not know the case number or the names of the parties.

Sir James Munby P emphasised the importance of all the following matters to judges sitting in family courts :

1. applications for committal for contempt should be heard in public, and if exceptionally heard in private, the person found guilty of contempt should be named;
2. no one should ever be committed for contempt of court without the name of the contemnor and proper details of the contempt being made publicly available in a judgment published on the BAILII website;
3. that applied whether or not anyone had required the judgment;
4.  further guidance was given for the precise wording for the public court list in collection order cases;
5.  further guidance was also given for cases where it was not possible to publish those details in the public court list, for example, because the prisoner was produced at court by the tipstaff on the morning of the hearing, having been arrested overnight

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