Justice for Families Ltd v Secretary of State for Justice

Habeas corpus does not lie to challenge imprisonment imposed by a court of competent jurisdiction. The proper remedy is an appeal. Nor is the writ available after the detention has ended, because actual detention is the basis of the court’s jurisdiction.

A third party may apply where the prisoner cannot act because of close custody, ignorance or disability. A mere stranger cannot intervene where the prisoner is able to act and has legal representation. Procedural defects in listing a committal hearing do not deprive an otherwise competent court of jurisdiction.

A company applied for habeas corpus in respect of a mother who had been committed to prison for 28 days after breaching a collection order concerning her children. The company did not initially know her identity, had no instructions from her and had made no contact with her legal representatives. She had already been released when the application was made.

Collins J dismissed the application as misconceived. The company appealed, contending principally that the committal hearing was not conducted by a court of competent jurisdiction because it was unlisted and because the judge had allegedly acted as prosecutor and judge. The appeal also raised the company’s standing, its representation by a director and the public administration of committal proceedings.

1. Appeal dismissed. Habeas corpus could not be used to challenge the sentence. The mother had been imprisoned by a court of competent jurisdiction, so her remedy was an appeal. This remained so even if the committal order had arguably been unlawful on its face.

2. The writ was also unavailable because the mother had completed her sentence before the application was made. Habeas corpus determines the legality of an existing detention and facilitates release from it. Actual detention is therefore essential to the court’s jurisdiction.

3. Theis J had jurisdiction to determine whether the mother had breached the collection order after her arrest by the Tipstaff. She was not acting as prosecutor. The fact that the hearing was allegedly unlisted did not deprive the court of competence. The hearing had in fact occurred in public, with the mother present and represented. Even an erroneous private hearing would not necessarily make the resulting order void.

4. A third party may seek habeas corpus without the prisoner’s instructions or knowledge where circumstances prevent the prisoner from acting. The court should remain flexible, but the jurisdiction is bounded. It will commonly be appropriate where the prisoner is incommunicado or is prevented from acting by ignorance or disability. The company lacked standing because the mother was neither incommunicado nor unable to act; she had counsel and access to an appeal.

5. A company employee may represent the company only with the required authority and the court’s permission. The director’s self-authored assertions did not comply with the prescribed requirement for evidence of the date and manner of authorisation. The court nevertheless heard him as an indulgence, which created no precedent.

6. Under the Family Procedure Rules, any person may request a copy of an order made in open court. The court office should provide a committal order where sufficient information is supplied to locate it without undue difficulty, even if the applicant lacks the case number and party names.

7. The court reiterated that committal proceedings must ordinarily be public and that judgments imposing immediate or suspended committal must be transcribed and published promptly. It gave practical directions for publicly listing urgent proceedings arising from arrests under collection or location orders. A failure to sit publicly, list correctly or publish the judgment would not, by itself, invalidate an otherwise proper committal or justify habeas corpus.

• Court of Appeal (Civil Division): The appeal was dismissed: [2014] EWCA Civ 1477.
• Administrative Court: Collins J refused the application for habeas corpus on 6 November 2013 as hopeless and entirely misconceived. No neutral citation was stated.
• Family Division: Theis J committed the mother to prison for 28 days for contempt after finding breaches of the collection order: London Borough of Ealing v Connors [2013] EWHC 3493 (Fam).