Scarth (The Living Man) v Governor of HM Prison Armley & Anor

Habeas corpus is concerned with the lawfulness of detention. It is not the appropriate remedy for complaints about prison conditions, medication or other matters which do not establish that detention itself is unlawful. A person’s age or asserted ill health does not, without proper evidence, make imprisonment contrary to Articles 2 or 3 of the Convention. Unauthorised recording of court proceedings is capable of constituting contempt, and the use of the summary procedure or absence of legal representation does not of itself establish an Article 6 breach. Article 10 rights are subject to restriction. Bail pending an appeal against conviction or sentence is exceptional, particularly where the appeal is likely to be heard promptly.

The claimant was imprisoned for six months after being found in contempt of court by HH Judge Rose in the Bradford Crown Court on 26 July 2011. The alleged contempt arose from recording proceedings while sitting in the public gallery. The claimant subsequently issued a claim for habeas corpus against the Governor of HM Prison Armley and the Secretary of State for Justice.

He alleged breaches of Articles 2, 3, 6, 7 and 10 of the Convention, and alleged bias by the Crown Court judge. He also sought bail pending an appeal to the Court of Appeal Criminal Division and raised the possibility of applying to purge his contempt. The central issues were whether his detention was unlawful, whether habeas corpus was an appropriate remedy for his complaints, and whether bail or an application to purge contempt should be entertained by the Administrative Court.

1. Habeas corpus refused. The court found no proper basis for concluding that the claimant had been unlawfully imprisoned or that his imprisonment had subsequently become unlawful. The determination of whether the finding of contempt or sentence should stand was primarily for the Court of Appeal Criminal Division.
2. The Crown Court had jurisdiction to deal summarily with contempt, including contempt in the face of the court. That expression was interpreted broadly. Unauthorised recording of court proceedings was capable of amounting to contempt, and it was open to the judge to investigate and determine whether contempt had been committed.
3. The claimant’s lack of legal representation did not, without more, infringe Article 6. Nor was there sufficient basis for concluding that the summary procedure itself breached Article 6. No evidence established bias, whether real or apparent.
4. Habeas corpus was not the appropriate remedy for complaints about prison conditions or medication. Such complaints should ordinarily be pursued through the prison complaints procedure, followed where appropriate by judicial review or a private law claim.
5. The claimant’s age and asserted ill health did not, without proper medical evidence, establish breaches of Articles 2 or 3. His ability to present robust arguments was a factor relevant to whether it was permissible to infer that his health made imprisonment incompatible with those rights. Article 7 was not arguable on the material advanced. Article 10 did not create an unrestricted right to record court proceedings.
6. The court declined to entertain an application to purge contempt, assuming without deciding that it had jurisdiction. The judge who found the contempt, or alternatively the Court of Appeal Criminal Division, was better placed to assess the seriousness of the contempt and the genuineness of any application.
7. Bail refused. Bail pending an appeal against conviction or sentence was rarely granted, particularly where the appeal was likely to be heard shortly. The circumstances and limited information before the court did not justify bail.

• Bradford Crown Court: on 26 July 2011 HH Judge Rose found the claimant in contempt of court and sentenced him to six months’ imprisonment.
• Court of Appeal Criminal Division: the claimant had lodged an appeal, which was directed to be listed on the first available date after 2 September 2011.
• High Court (Administrative Court): the applications for habeas corpus and bail were refused, and the court declined to consider an application to purge contempt.