McCann v Hertfordshire Constabulary

Habeas corpus is an exceptional remedy where the applicant’s detention has subsequently become attributable to a court order rather than the alleged unlawful police detention. The court should not continue proceedings merely to determine an historic issue or facilitate exclusion of evidence. An alleged unlawful detention may instead support a damages claim, and the admissibility of evidence obtained during detention should be determined by the trial court under the Police and Criminal Evidence Act 1984.

The claimant was arrested on suspicion of burglary and detained by Hertfordshire police. After being charged and granted bail, she was rearrested by Hertfordshire police acting for Bedfordshire police and detained for questioning. She applied for habeas corpus, alleging that the later detention was unlawful under the Police and Criminal Evidence Act 1984.

Before the application was heard, the claimant was charged with further offences, refused bail by the Magistrates’ Court and remanded in custody pursuant to that court’s order. An out-of-hours judge had declined to grant relief and directed that the matter be considered in open court. The central issue was whether the application remained an exceptional case warranting a ruling on the earlier detention.

1. Application refused. The claimant’s current custody resulted from the Magistrates’ Court’s remand order, not from a decision of either police force. Habeas corpus proceedings were therefore highly unlikely to affect the lawfulness of the present detention.
2. The court was prepared to assume, without deciding, that the detention by the Bedfordshire police had been unlawful by reference to sections 31, 41 and 42 of the Police and Criminal Evidence Act 1984. That assumption did not make the case exceptional.
3. The claimant had possible alternative remedies. An action for damages could be brought, although its value was accepted to be limited. More importantly, any application to exclude evidence obtained during the detention should be made in the Crown Court under section 78 of the Police and Criminal Evidence Act 1984, once that court was properly seised of the proceedings.
4. The court rejected the submission that the circumstances disclosed deliberate manipulation requiring habeas corpus relief. On the material before the court, the likely explanation was confusion, misunderstanding and failure of communication. The authority of R v Governor of Canterbury Prison, ex parte Craig, [1990] 91 CrAppR 7, showed that a hearing could in an appropriate case continue after release, but did not establish that this case was exceptional.
5. Disposition: the application was refused. The claimant’s written and oral submissions were commended as diligent and helpful. Costs were to be assessed by the Legal Services Commission.

The application was issued on 9 May 2008. An out-of-hours judge declined to make an order and directed that the matter be considered in open court. The Divisional Court subsequently heard and refused the application.