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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Freeman, R (on the application of) v Director of HMP Thameside [2015] EWHC 1569 (Admin) (15 May 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1569.html
Cite as: [2015] EWHC 1569 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
Between:
____________________
| THE QUEEN ON THE APPLICATION OF FREEMAN | Applicant | |
| v | ||
| DIRECTOR OF HMP THAMESIDE | Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent was not represented and did not attend
____________________
Crown Copyright ©
- MR JUSTICE FOSKETT: On 17 April 2015 Mr Justice Mostyn considered Mr Freeman's application for the issue of a writ of Habeas Corpus pursuant to the recently introduced Part of the Civil Procedure Rules, CPR 87. This provides, amongst other possible procedural avenues, for initial consideration of such an application on paper. Mr Justice Mostyn dismissed the application pursuant to CPR 87.4 (1) (f).
- Mr Freeman has exercised the right provided by CPR 87.4 (2) for reconsideration of that decision. He has presented his case via video link from the prison where he is currently kept, having set out his reasons for suggesting that Mr Justice Mostyn was in error in the decision he made in a letter to the court manager dated 23 April. As I have indicated to Mr Freeman, I had read that letter before coming into court. Mr Freeman has indicated to me that he had little notice of this afternoon's hearing but has been content to proceed and make his application orally to me. He is not in any way disadvantaged by having had little notice. He has been able to articulate his position very clearly.
- The application involves a reconsideration of the order that Mr Justice Mostyn made. I approach the issues raised afresh.
- The claim form was sealed by the court on 15 April 2015 and was supported by a witness statement from Mr Freeman dated 2 April. He was assisted apparently in preparing the claim form by someone called Alexander Forbes, described in the papers as a McKenzie Friend.
- As I have explained to Mr Freeman, since seeing the papers in this case, I have supplemented some of the information by requesting in particular information from Bexley Magistrates' Court. Mr Freeman had himself indicated in the papers that he had been convicted of harassment of his daughter and grand-daughter by the Magistrates' Court on 1 November 2011. As a result of that conviction, he was made the subject of a restraining order which I have now seen. It is made in the name of Mr Brian Pead, the name by which Mr Freeman was known until his recent change of name. It gives an address of his in South East London. In summary, it prevented him from contacting directly or indirectly five named people or going to a particular address in Sidcup, Kent.
- Subsequent to the making of that restraining order, allegations have been made that he has breached it by sending letters and cards to the prohibited address. The information supplied by the Magistrates' Court indicates that he faces five allegations of that nature arising from incidents alleged to have occurred between 1 January and 11 February 2015. The memorandum supplied by the court indicates - and he has confirmed to me today - that he pleaded not guilty on 21 March and he has been committed for trial to the Inner London Crown Court. He was remanded in custody, the memorandum indicating that there were concerns about him being likely to abscond, that he was likely to re-offend and that he may interfere with witnesses. From the memorandum that has been supplied by the court, it appears there was a previous relevant bail history and a history of failing to comply with court orders. At all events, that is the background to his present incarceration.
- As a result of my further inquiries - and again confirmed by Mr Freeman this afternoon - he had also appeared before the Magistrates' Court in March 2014 facing a similar allegation of breaching the restraining order. (I say "a similar allegation" - a similar allegation to the allegations to which I have referred.) It was alleged that between 24 December 2013 and 12 March 2014 he sent various letters to people, knowing there was a restraining order, in breach of that restraining order. Again, he pleaded not guilty and he elected trial by jury. He was, as I understand it, granted conditional bail, the conditions requiring him to live at an address in Norfolk and to report to a local police station twice a week. It is possible that the alleged further incidents, comprising the five other allegations, are seen as breaches of the bail conditions thus imposed.
- Both of those matters were listed for a plea and case-management hearing at Inner London Crown Court yesterday, 14 May. I understand that following that hearing there is going to be a further plea and case-management hearing on 12 June, with a trial fixed for 6 July. Mr Freeman has confirmed that no application for bail was made on his behalf yesterday although he tells me that he instructed his barrister to do so. At all events, I have to approach the matter on the basis that no application for bail was made.
- Mr Freeman claims that the original restraining order was unlawful and void ab initio because, he alleges, neither his daughter nor grand-daughter appeared to give evidence at the original hearing and he was thus denied the right to cross-examine them. He has also said that neither provided any witness statement. On this basis he contends that the Magistrates' Court had no jurisdiction to conclude that he was guilty of the offence of harassment, that since that is so he cannot be guilty of a breach of the order as alleged. He seeks his release from custody for those reasons.
- It is, of course, well established that the way to challenge a decision of a Magistrates' Court is either to appeal to the Crown Court or to appeal to the Divisional Court by way of case stated. Mr Freeman has confirmed that he understands that and says that he had attempted to appeal against the original decision of the Magistrates' Court to Woolwich Crown Court but says that the court has claimed to have lost the paperwork. Again, as I have indicated to him, the inquiries I caused to be made over the last few days indicate that Woolwich Crown Court has no record at all of Mr William Brian Freeman or of a Mr Brian Pead seeking to appeal against the relevant decision of the Magistrates' Court. It does have a record of an acquittal of a particular allegation, but that is not of any direct relevance to today's proceedings.
- It is only by one or other of the two routes to which I have referred that the validity of an order made by the Magistrates' Court can be challenged. It cannot be challenged by way of what is, in effect, a collateral challenge such as that which Mr Freeman is attempting in this case by this application. It is well established law that an order of any court remains effective unless and until it is set aside. As it happens, that position was re-affirmed recently in the context of habeas corpus by the Divisional Court and the Court of Appeal (Criminal Division), presided over by the Lord Chief Justice, in R v Gerald James Davis ...judgment given on 17 February 2015).
- It follows that in the absence of any effective appeal against the order of 1 November 2011 the conviction and the order based upon it remain valid and effective. Any alleged breach of that order may, therefore, be considered by an appropriate court. That is what will take place when the trial of the various matters to which I have referred takes place. The question of whether Mr Freeman remains in custody or is freed pending trial is a matter for the Crown Court and not for this court. An opportunity to seek bail arose yesterday but, for whatever reason, it was not taken.
- Putting the matter shortly, having reconsidered the matter as I have been requested to do by Mr Freeman, in my judgment there is no merit in this application and I, too, am of the view that it should be dismissed.
- MR JUSTICE FOSKETT: There we are, Mr Freeman. Those are my reasons for rejecting the application on a reconsideration. Anticipating that you may wish to ask me to direct that you be admitted to bail, I think you will probably appreciate from what I have just said that as far as I am concerned the only court that has the power to do that is the Crown Court. I do not have any jurisdiction to consider the matter of bail today.
- THE APPLICANT: Yes, sir. You have made your point. Carry on and I will summarise at the end.
- MR JUSTICE FOSKETT: I have nothing more to say. If there is anything else you wish to say, that is fine. But so far as I am concerned, I have considered the application on its merits and I have given you reasons for refusing the application. That, as it seems to me, is the end of the matter unless there is any particular matter you wish to raise with me.
- THE APPLICANT: Yes, sir. I am absolutely staggered and I am absolutely horrified that under the rule of law when you have heard, as you said, in this case me, has been found guilty of a crime that even his own MP says he cannot possibly be guilty of that you are not going to take that any further and report that to the appropriate authorities. So I invite a response on that issue, sir.
- MR JUSTICE FOSKETT: We are not going to get involved in a conversation, Mr Freeman. I have given you the reasons why, as a matter of law, I cannot grant the writ of Habeas Corpus that you have asked me to do. I have given my reasons and I am not really prepared to entertain any further discussion about it. You have made your points several times and I have given you my reasons. Unless there is anything else that you wish to say, I think that that probably represents the end of this afternoon's hearing. I am grateful to you for putting the matter so clearly, but I am not able to accede to the way in which you put the matter.
- THE APPLICANT: In terms of a recording for this, sir, a copy of the recording.
- MR JUSTICE FOSKETT: Is that something that you are prepared to pay for?
- THE APPLICANT: Well, yes. I don't see that I should have to but I am prepared to.
- MR JUSTICE FOSKETT: If you wish to have a recording of today's hearing - - not a recording; you can have a transcript but you would have to approach the transcribers who, for a fee, will doubtless provide you with such a transcript.
- THE APPLICANT: Thank you, sir.
- MR JUSTICE FOSKETT: Thank you very much indeed and I wish you good afternoon.