England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6th April 2004

Tuesday, 6th April 2004

1. MR JUSTICE KEITH: This is an application for leave to issue a writ of habeas corpus. It is made in respect of Geoffrey Harold Scriven. He was adjudged bankrupt on 1st March 2000 in the Stockport County Court on a petition presented by the Office for the Supervision of Solicitors of the Law Society. On 19th March 2001 he was ordered to attend Stockport County Court on 18th June 2001 for the purpose of being publicly examined. The order contained the following warning:

"If you fail without reasonable excuse to attend your public examination at the time and place set out in the order above you will be liable to be arrested without further notice (section 364(1) of the Insolvency Act 1986)

You will also be guilty of Contempt of Court (section 290(5) of the Insolvency Act 1986) and liable to be committed to prison or fined."

2. Mr Scriven did not attend the hearing on 18th June 2001. It is said on his behalf that he had not been served with the order of 19th March 2001, but in the light of the warning contained in the order of 19th March 2001, Mr Scriven was arrested on 2nd July 2001, pursuant to the provisions of the Insolvency Act 1986 referred to in the order. The basis of his arrest, though, appears to have been misunderstood, because he was subsequently charged with failing to surrender to custody at Stockport County Court on 18th June 2001, contrary to the relevant provisions of the Bail Act 1976. Be that as it may, when Mr Scriven appeared at Stockport County Court on 4th July 2001 before Judge Caulfield, he was released from custody.
3. The next hearing took place on 29th August 2001. That was the occasion on which Mr Scriven committed the contempt of court of which he was eventually to be convicted. There is a dispute as to what the hearing on 29th August 2001 was to be for. The judge on 29th August 2001, Miss Recorder Hughes, thought that it was the resumed hearing of Mr Scriven's public examination. It is claimed on Mr Scriven's behalf that it was nothing of the kind; it was a hearing ordered by Judge Caulfield to consider the circumstances in which Mr Scriven had come to be charged with offences under the Bail Act.
4. There is some support for that belief in the language of Judge Caulfield's order of 4th July 2001. He ordered that two days be set aside for the hearing, which is said to have been unnecessary if Judge Caulfield had intended the hearing simply to be the resumption of Mr Scriven's public examination. In paragraphs 4 and 5 of the order, directions were given for Mr Scriven to put into writing before the hearing those matters which he considered "to be relevant to the issues before the court", and for the Official Receiver to reply to them - directions which are said to have been inappropriate if the next hearing was simply intended to be the resumption of Mr Scriven's public examination. No clue as to what the hearing would be about can be gleaned from the part of the order which directed that the hearing should be adjourned to 29th August 2001, because it simply said that the hearing be adjourned to that date without identifying what the hearing was to be for, but the charge sheet containing the charges which Mr Scriven faced under the Bail Act shows that he was being required to answer the charges at Stockport County Court on 4th July 2001. So if the hearing on 4th July 2001 was convened in connection with Mr Scriven's arrest for failing to attend court on 18th June 2001, it looks as if the hearing which was being adjourned on 4th July 2001 to 29th August 2001 was, as Mr Scriven claimed, to consider the circumstances in which he came to be charged and was not the resumption of his public examination. Moreover, it is said that he was not provided with conduct money for his attendance at the hearing on 29th August 2001, which it is said would have had to have been provided to him if the hearing had been his resumed public examination.
5. Mr Scriven duly attended the hearing at Stockport County Court on 29th August 2001. Since he claims that he thought that the hearing was to consider the circumstances in which he had been charged with offences under the Bail Act, it is claimed on his behalf that he was insisting on that issue being investigated first. However, since Miss Recorder Hughes thought that the hearing was the resumed hearing of his public examination, she is said to have refused to permit Mr Scriven to raise the issue which he wanted to canvas and to have insisted that his public examination should continue. We, of course, do not know what actually happened at the hearing, but it is said on Mr Scriven's behalf that when the judge saw that Mr Scriven was not going to participate in the resumed hearing of his public examination until the issue which he wanted canvassed had been dealt with, she left court. What is not in doubt is that the court ordered that the public examination be adjourned to enable a formal application to be made for Mr Scriven's committal to prison for contempt of court.
6. In due course, the Official Receiver applied for Mr Scriven's committal, and that application was heard at Liverpool County Court on 5th July 2002. The resumption of Mr Scriven's public examination was fixed for that date as well. Mr Scriven did not attend court on that date. His public examination was further adjourned but, more importantly for present purposes, Judge Howarth proceeded to hear the application to commit Mr Scriven to prison for his contempt of court. He must have been satisfied that Mr Scriven had been personally served with notice of the hearing since personal service was required by Ord.29 r.1(4) of the County Court Rules. The judge found Mr Scriven guilty of contempt of court in failing to comply with the order of 19th March 2001 ordering him to attend Stockport County Court for the purpose of being publicly examined by "refusing to go into the witness box and answer questions at the adjourned hearing of his public examination on 29th August 2001". Mr Scriven was sentenced to six months' imprisonment. On 21st August 2002 a warrant was issued for Mr Scriven's arrest. The warrant was not executed, and it was "re-issued" on 4th March 2003 and again on 5th February 2004. Pursuant to that warrant, Mr Scriven was arrested on 17th March 2004, and he has been detained in Strangeways Prison, Manchester, since then.
7. We should deal with why it is said Mr Scriven did not attend Liverpool County Court on 5th July 2002. He claims that he was not personally served with notice of the hearing. That is disputed by the Treasury Solicitor, who claims that Mr Scriven was personally served on 18th June 2002 by a process server with notice of the hearing. According to the Treasury Solicitor, when Mr Scriven subsequently informed the Treasury Solicitor that he would not be attending the hearing on 5th July 2002 because he would be on business in France then, attempts were made by the process server on 29th June and 1st July to serve a letter on Mr Scriven from the Treasury Solicitor, informing him how important his presence at the hearing on 5th July was. All of that is denied by Mr Scriven. His case is that the process server subsequently perjured himself when he purported to confirm personal service on Mr Scriven on 18th June 2002 of the notice of the hearing and the attempted service on 29th June and 1st July of the Treasury Solicitor's letter. Indeed, a private prosecution was initiated by Mr Scriven against the process server for his perjury, but when the prosecution was taken over by the Crown Prosecution Service, no evidence was offered and the charges were dismissed.
8. The application for leave to issue a writ of habeas corpus is not being made by Mr Scriven himself. It is being made in the name of Ms Lilian Rayne. She and Mr Scriven are both executive officers of the Litigants In Person Society. It may be that the application is being made in the name of Ms Rayne because there is an embargo on Mr Scriven issuing proceedings without the leave of the court. To be precise, an order declaring Mr Scriven to be a vexatious litigant (as such an order is colloquially called) was made by the Divisional Court on 4th February 2000 pursuant to section 42 of the Supreme Court Act 1981. The effect of the order was, amongst other things, to prevent Mr Scriven from instituting any civil proceedings without the leave of the court. For our part, we very much doubt that the order made against Mr Scriven under section 42 prevents him from applying for leave to issue a writ of habeas corpus when his detention is not in dispute. We reach that strong provisional view by parity with the reasoning adopted by the Court of Appeal in ex parte Waldron [1986] 1 QB 824. But in the light of one of the points made by Ms Rayne, it should be said that the order under section 42 could not have prevented the Official Receiver from initiating and pursuing the committal proceedings against Mr Scriven.
9. Technically, of course, it is not open for the application to be made in the name of Ms Rayne, rather than in Mr Scriven's name. Ord.54 r.1(3) of the Rules of the Supreme Court, which is said by Ms Rayne to sanction the application being made in her name, does no such thing: it merely provides that the evidence in support of the application may come from someone other than the person detained when the person detained is not in a position to make a witness statement or affidavit himself. But since Mr Scriven's liberty is at stake, we have considered the application on its merits and have also allowed Ms Rayne to address us on Mr Scriven's behalf.
10. The application is supported by what purports to be an affidavit signed by Ms Rayne, but which has no jurat, and would therefore have been treated as a witness statement, if it had contained a statement of truth, which it does not. It is also supported by witness statements from Mr Gerald James and Mr Peter Hayward. The latter contains a statement of truth, but the former does not, but we have not allowed those defects to deter us from considering this application fully on its merits.
11. As Ms Rayne is not a lawyer, the grounds of the application have, understandably, not been expressed as crisply as might otherwise have been the case, but Mr Scriven's primary case for his release from detention is that he should not have been convicted of contempt of court in the first place. Two reasons in particular are advanced. First, the hearing on 5th July 2002 should not have gone ahead at all because he had not been personally served with notice of the hearing. Secondly, his refusal to go into the witness box on 29th August 2001, and to answer questions in connection with his public examination, was entirely justified because the hearing on that date was not intended to be the resumed hearing of his public examination at all.
12. The second of these arguments may well be a powerful one, but the difficulty for Mr Scriven is that neither of these arguments amount to grounds for challenging the lawfulness of his detention. His argument that he should not have been convicted of contempt of court should have been deployed in an appeal against the finding that he had been guilty of contempt. Such an appeal lies not by way of an application for leave to issue a writ of habeas corpus to the Divisional Court of the Queen's Bench Division, but by way of appeal to the Civil Division of the Court of Appeal (see section 13(2)(b) of the Administration of Justice Act 1960). Save in exceptional circumstances, the writ of habeas corpus is not intended to be used in respect of a lawful sentence passed by a court of competent jurisdiction (see the judgments of Lawton LJ and Woolf LJ (as he then was) in the Court of Appeal in Linnett v Coles [1987] 1 QB 555 at pages 561A-562A and page 564D-E). Such exceptional circumstances, we apprehend, would be if an appeal was not capable of putting things right.
13. We do not think that there are any such exceptional circumstances in this case because the Court of Appeal, on an appeal under section 13(2)(b), would be able to set aside the finding of contempt on the grounds advanced by Mr Scriven if the Court of Appeal finds that those grounds have merit. It follows that the complaints which Mr Scriven makes can only properly be made on an appeal to the Court of Appeal from Judge Howarth's order of 5th July 2002, though if such an appeal is launched, Mr Scriven would have to explain to the Court of Appeal's satisfaction why he chose at the time not to try to pursue an appeal from those orders. In the interests of completeness, we should add that we doubt very much whether Mr Scriven would need leave under section 42 to mount such an appeal.
14. There are two other matters which we must address. First, it is said that the Official Receiver himself was alleged to have been in contempt of court in advertising Mr Scriven's bankruptcy petition at a time when a stay on its advertisement was in force. It is said that that allegation was never determined, and that therefore it was wrong for the Official Receiver to commence contempt proceedings in Mr Scriven's case. We are not convinced that this allegation was not determined: it looks as if it was disposed of by Judge Maddocks at Liverpool Combined Court on 18th July 2002. But even if it was not, there is no principle of law which we know of that contempt proceedings cannot be taken by someone who has an unresolved allegation of contempt pending against him.
15. Secondly, it is said that the order for Mr Scriven's committal and the warrant for his arrest, which was issued following the order for his committal, are invalid for defects in the documentation. The order for committal and the warrant for his arrest are said to have been issued on the wrong forms; neither the order for committal, nor the warrant for his arrest, are said to have been signed by the judge; the warrant for his arrest was not executed within 30 days of its issue; no application for an extension of time for the execution of the warrant was sought; the warrant was "re-issued" twice outside the period for its execution, and its "re-issue" does not appear to have been sanctioned by the seal of the court or the signature of the judge. We must deal with each of those points in turn.
16. First, the order for Mr Scriven's committal was on County Court Form N79 and the warrant for his arrest was on County Court Form N80. It is true that Form N79 has printed on the bottom of it: "Committal or other order upon proof of disobedience of a court order or breach of an undertaking (Family Law Act 1996) (Protection from Harassment Act 1997)". At first blush, therefore, Form N79 is the appropriate form only for breaches of orders made or undertakings given in proceedings to which those Acts relate. But Forms N79 and N80 are the only forms used in the county court for orders for committal and warrants for arrest, Form N85 being the appropriate form for an order made in the High Court. It cannot therefore be said that the wrong forms were used in Mr Scriven's case.
17. Secondly, it is said that neither of the forms were signed by the judge. We have not been referred to any rule of court which requires a warrant for arrest to be signed by the judge. Form N80 does not indicate that the judge should sign it; certainly there is no dedicated space for the judge's signature on it. An old edition of the Supreme Court Practice refers to "the Form of warrant which is signed by the judge making the order", but that does not appear in the current issue of Civil Procedure, nor does it appear in the notes to Form N80. The order for committal is a different matter. We have not been referred to any rule of court which requires the judge to sign the order for committal, but on the reverse of the document to be attached to the order, which contains details of the hearing and the contempts found proved, there is a reference to where the judge should initial the record. On the documents relating to Mr Scriven, someone has written some initials. We have ascertained that Judge Howarth's initials are NJGH. It appears to us that those are the initials on the Form N79 which applied to Mr Scriven, and we infer therefore that the form was initialled by Judge Howarth.
18. Thirdly, Ms Rayne said that a warrant of arrest has to be executed within 30 days of its issue, and that the time for its execution may be extended for six months. She claims that that is what she was told by an officer at the Citizens Advice Bureau at the Royal Courts of Justice. We have not been able to find any source for those time limits, nor has Miss Ivimy for the defendant to the application, the Governor of Strangeways Prison. It is true that the court's seal was not appended to the purported "re-issues" of the warrant, but we have not been referred to any rules of court which deal with the re-issue of warrants of arrest, let alone any formalities which have to be complied with when they are re-issued. As it is, Miss Ivimy has spoken, she tells us, to the office at Stockport County Court and was told that the only reason why the warrant was "re-issued" on two occasions was because of changes which Stockport County Court had been led to believe had occurred to Mr Scriven's address. Indeed, the warrant for his arrest has two addresses crossed out. Since, therefore, there were no time limits for the issue or execution of the warrant for Mr Scriven's arrest, and since the "re-issue" on two occasions of the warrant was an administrative matter only to cater for Mr Scriven's change of address, no question of any defect arises.
19. We should also deal with the remainder of Ms Rayne's complaints in the order in which they appear in her points of argument. There was nothing to prevent a police constable effecting Mr Scriven's arrest pursuant to the warrant on 17th March 2004. The order for committal was properly issued by the Liverpool County Court because that was where the hearing on 5th July 2002 took place, and it was acting for Stockport County Court. There was no need for the court's seal to be appended to the warrant when it was "re-issued", because its "re-issue" was an administrative and not a substantive matter. Nor is there any rule that an order for committal cannot be made when the alleged contemnor is not present. All that is required is that the alleged contemnor be personally served, and there was an affidavit of personal service sworn on 19th June 2002 by the process server before the court on 5th July 2002. In short, we have not discerned any basis for saying that the documentation was defective or that there was any irregularity in procedure.
20. But even if there was, does that mean that Mr Scriven's detention is unlawful? We deal first with the order for committal. In Nicholls v Nicholls [1997] 1 WLR 314, the Court of Appeal held that procedural defects in an order for committal will not justify the order for committal being set aside when the defects had not caused the contemnor prejudice or injustice. The defects complained of in the order for Mr Scriven's committal, namely the use of the wrong form and the absence of the judge's signature, are not defects of substance and they could not have caused Mr Scriven prejudice or injustice. It is true that Nicholls proceeded on the basis that section 13(3) of the Administration of Justice Act 1960 should be construed as permitting a court hearing an appeal from an order of committal for contempt of court to rectify procedural defects, and it is true that section 13(3) does not apply to this case because this case is not an appeal from the order of committal, but an application for leave to issue a writ of habeas corpus. But we know of no principle, nor have we been referred to any, which renders the detention of a contemnor unlawful simply because the document recording the order of committal made by the court was defective in respects which caused the contemnor no prejudice or injustice.
21. Whether the same is true of the warrant of arrest is another matter. A warrant of arrest issued in a county court following an order for the committal of the contemnor is the authority to the district judge and the bailiff, and anyone such as a court usher or police officer acting in their name, to arrest the contemnor so that the order for his committal can be implemented. No authority has been cited to us, nor have we found any, to the effect that where a lawful sentence has been passed on a contemnor by a court of competent jurisdiction, and a lawful order for his committal has been made, the subsequent detention of the contemnor is rendered unlawful merely because of defects in the warrant which was issued to secure his arrest so that the court's order for his detention can be implemented. But whether that is a correct statement of the current state of the law I prefer to leave to another occasion, since it does not arise in this case because I have concluded that there was no irregularity in either the issue of the warrant for Mr Scriven's arrest or in any of the formalities associated with it.
22. For these reasons, for my part I would refuse this application for leave to issue a writ of habeas corpus.
23. MR JUSTICE GAGE: I also agree. This application must be refused.
24. THE APPLICANT: My Lord, can we please have this transcript of your judgment under public funds under the circumstances, Mr Scriven is not available to hear the judgment.
25. MR JUSTICE GAGE: Yes, in this instance we will allow you to obtain a transcript paid for out of public funds.
26. THE APPLICANT: Could I also my Lord if you could expedite the transcript, or ask it to be speedily --
27. MR JUSTICE GAGE: We can say this. We hope it will be dealt with expeditiously, but the shorthand writers have an awful lot on and no doubt they will do it as speedily as they can.
28. THE APPLICANT: It is an urgent matter, my Lord.
29. MR JUSTICE GAGE: I do not frankly know whether we have power. All I can say is we are both agreed that if it can be expedited, it should be expedited, because it obviously involves the liberty of the subject. That, I think you will find, is sufficient.
30. THE APPLICANT: My Lord, thank you. Can I ask if it is possible for you to grant leave under section 42 for Mr Scriven to lodge an appeal against the order on his behalf, to save time as he is in custody, my Lord, already been there three weeks.
31. MR JUSTICE GAGE: You mean so that he can appeal to the Court of Appeal?
32. MR JUSTICE KEITH: You mean, appeal to the Court of Appeal from today's order or from the original order?
33. THE APPLICANT: It would have to be on both.
34. MR JUSTICE GAGE: It is not for us to give you advice, but you will, I dare say, have detected from my Lord's judgment that he has an appeal to the Court of Appeal.
35. THE APPLICANT: That is correct.
36. MR JUSTICE GAGE: I would not have thought that he needed leave to --
37. THE APPLICANT: I understand that, and you said that, but to safeguard I would ask you if you would grant him leave if it is necessary for him to obtain leave.
38. MR JUSTICE GAGE: Let us just hear from Miss Ivimy. Is there any reason why we should not grant him leave in his section 42, if he requires it?
39. MS IVIMY: I am afraid I cannot assist the court at this point.
40. MR JUSTICE GAGE: Both of us are, can I put it this way, of the off the cuff view that he does not require leave of the court.
41. THE APPLICANT: I understand.
42. MR JUSTICE GAGE: But if he requires leave, we are both agreed that he should have leave to appeal the order committing him to the Court of Appeal.
43. THE APPLICANT: Thank you, my Lord.
44. MR JUSTICE GAGE: Nothing to do with this decision.
45. THE APPLICANT: No, because this decision is my application, my Lord.
46. MR JUSTICE GAGE: Miss Rayne, when I said we are agreed that he should have leave to file a notice of appeal, I simply mean leave under section 42. It may be, my Lord points out, that you need leave in any event of the Court of Appeal.
47. THE APPLICANT: No, my Lord --
48. MR JUSTICE GAGE: But I am not sure about that, but we do not and cannot grant you that leave because it is not in these proceedings.
49. THE APPLICANT: I understand, but under the Administration Act section 13 he doesn't need leave to appeal on committal proceedings.
50. MR JUSTICE GAGE: If you say so, I am sure you are right.
51. THE APPLICANT: But he will need leave under section 42 to lodge that, and this is why I'm asking --
52. MR JUSTICE GAGE: As I say, if you do need that leave, you may have it.
53. THE APPLICANT: Also, he may need leave under section 42 for an extension of time. Will you please grant --
54. MR JUSTICE GAGE: How long does he have for the section 42?
55. THE APPLICANT: 14 day application, my Lord.
56. MR JUSTICE GAGE: I would have thought that he has every incentive to get it done within that time.
57. THE APPLICANT: But the point is a committal order was done --
58. MR JUSTICE KEITH: You are talking about an extension of time to appeal because almost two years have elapsed.
59. MR JUSTICE GAGE: We cannot deal with that, that must be deal with by the Court of Appeal.
60. THE APPLICANT: In an application under section 42 for leave to appeal he can also ask for leave for the extension of time for the appeal.
61. MR JUSTICE GAGE: I am afraid that is something you will have to go to the Court of Appeal for.
62. THE APPLICANT: My Lord, thank you. Can you make sure that it is in the order that leave under section 42 has been granted, my Lord.
63. MR JUSTICE GAGE: No doubt that will be drawn up by the court.
64. THE APPLICANT: Thank you, my Lord.
65. MR JUSTICE GAGE: Thank you both very much.