Freeman, R (on the application of) v Director of HMP Thameside

A magistrates’ court order may be challenged only by appeal to the Crown Court or by case stated to the Divisional Court. Habeas corpus cannot be used as a collateral means of challenging the validity of the conviction or order. An order remains effective unless and until it is set aside, so an alleged breach may be dealt with by the appropriate criminal court. The court considering habeas corpus cannot determine whether the prisoner should be released on bail where that question falls within the Crown Court’s jurisdiction.

Mr Freeman sought a writ of habeas corpus after being remanded in custody pending trial on allegations that he had breached a restraining order. He contended that the original harassment conviction and restraining order were void because the complainants had not given evidence and he had been unable to cross-examine them.

Mr Justice Mostyn had dismissed the application on paper under CPR 87.4 (1) (f). Mr Justice Foskett reconsidered that decision under CPR 87.4 (2), considering afresh whether habeas corpus could provide relief and whether the court could direct Mr Freeman’s release pending trial.

1. The application was dismissed. The reconsideration was conducted afresh, but the challenge had no merit.
2. The validity of a magistrates’ court conviction or order must be challenged through an appeal to the Crown Court or an appeal to the Divisional Court by way of case stated. Habeas corpus cannot be used to mount an equivalent collateral challenge.
3. An order made by a court remains effective unless and until it is set aside. Accordingly, the 2011 conviction and restraining order remained valid and effective because no effective appeal had been established. Alleged breaches could therefore be considered by the appropriate criminal court at trial.
4. Whether Mr Freeman should remain in custody or be released pending trial was a matter for the Crown Court. The Administrative Court had no jurisdiction to consider bail in those circumstances. The opportunity to seek bail had arisen before the Crown Court, but no application had been made.
5. The court noted that the principle concerning the continuing effectiveness of an order had recently been reaffirmed in the context of habeas corpus by the Divisional Court and the Court of Appeal (Criminal Division) in R v Gerald James Davis, judgment given on 17 February 2015.

1. High Court (Administrative Court): Mr Justice Mostyn dismissed the habeas corpus application on paper under CPR 87.4 (1) (f). On reconsideration under CPR 87.4 (2), Mr Justice Foskett dismissed the application.