R v Scriven
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 02 June 2004 |
| Neutral Citation | [2004] EWCA Civ 683 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 June 2004 |
| Docket Number | Case No: C1/2004/0855 |
[2004] EWCA Civ 683
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STOCKPORT
COUNTY COURT SITTING IN LIVERPOOL
HIS HONOUR JUDGE HOWARTH
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Clarke and
Lord Justice Sedley
Case No: C1/2004/0855
Ms Lillian Rayne appeared as a Litigation Friend on behalf of the Appellant
Mr Richard Ritchie (instructed by The Treasury Solicitor) for the Respondent
This is the judgment of the court. It sets out our reasons for having, at the conclusion of argument on 20 May 2004, dismissed the appeal. For reasons which will appear, we have treated the matter before us as a full appeal regardless of the very considerable lapse of time.
Mr Scriven is at present serving six months' imprisonment for contempt of court in refusing to submit to his public examination in bankruptcy. Although the order for his committal was made as long ago as 5 July 2002, it was not implemented until 17 March 2004. It is partly because the intervening delay is not entirely explained on the Official Receiver's part (though it has much to do with Mr Scriven's peripatetic existence) that we have readily enlarged time. A further reason for doing so is that if, as is contended on his behalf, Mr Scriven has been unlawfully imprisoned, it is not too late to restore at least some of his lost liberty.
Mr Scriven has been represented throughout by his colleague Ms Rayne. With our permission she has addressed us in support of her written submissions. She has put Mr Scriven's case with acuity and persistence.
The matter of Mr Scriven's imprisonment has already been before the divisional court (Gage and Keith JJ) and this court (Tuckey and Laws LJJ). In the course of the proceedings it was established that Ms Rayne's application on Mr Scriven's behalf for a writ of habeas corpus was inappropriate, and that if there was a remedy it lay by way of an appeal out of time against the committal order and against the committal itself. Such an appeal lies as of right under section 13 of the Administration of Justice Act 1960.
This court on the previous occasion therefore dismissed the application for habeas corpus but adjourned the appeal to an expedited hearing – the hearing before us – in order to establish what was the true character of the proceeding on 29 August 2001 at which Mr Scriven was held to have acted in contempt of court.
Adjourning the matter, Laws LJ said this:
19. I consider that on the material we have so far seen there must be a doubt as to the nature of the hearing on 29th August 2001. I shall first refer to a document in our papers which appears to be a charge sheet issued, I think, by the Greater Manchester police. It contains these entries: Date of Charge 2/7/01, Court: Stockport County, First Appearance Date 4/7/01, and then this under the words "Charges in Full":
"Fail to surrender to bail (at appointed time). Offence Code
No.074.
You, having been released on bail in criminal proceedings, failed without reasonable excuse to surrender to custody at 10.30 18/6/01
at Stockport County Court.
Contrary to section 6(1) and (7) Bail Act 1976."
Then below that:
"Fail to surrender to bail (as soon as practical). Offence Code No.075.
You, having been released on bail in criminal proceedings, and having reasonable cause [sic] for failing to surrender to custody at 10.30 18/6/01 at Stockport County Court, failed to surrender at that place as soon after that time as was reasonably practicable.
Contrary to section 6(2) and (7) Bail Act 1976"
I surmise that this related to Mr Scriven's failure to attend court on 18th June 2001 pursuant to the order of 19th March 2001; but for my part I do not understand the reference to "released on bail in criminal proceedings."
20. Then we have the order which was the drawn order made by His Honour Judge Caulfield on 4th July 2001 in the County Court. This is an important document because it refers to the forthcoming hearing which eventuated on 29th August. The drawn order contains these matters:
"In the STOCKPORT County Court
In Bankruptcy…
Upon hearing Mr Scriven in person and Mrs Prince from the Official Receiver's Office
In the Matter of the Insolvency Act 1986.
IT IS ORDERED THAT
1. The hearing be adjourned to 29th and 30th August 2001 at 10.30am (Estimated length of hearing 2 days) at Stockport County Court…
2. Mr Scriven is released from custody in respect of these proceedings unless and until any further Order is made.
3. Mr Scriven is to attend the adjourned hearing.
4. Mr Scriven is to set out concisely in writing all the matters which he considers to be relevant to the issues before the Court.
Such matters are to be set out so far as is practical in chronological order with relevant documents in an indexed and paginated bundle and are to be filed with the Court [and then the appropriate place is given] and served on the Official Receiver…
5. The Official Receiver is to file and serve a reply by 4.00pm on 20th August 2001 in respect of each matter (even if only to assert that the matter is not relevant and giving brief reasons for the assertions).
IT IS RECORDED THAT
Whilst Mr Scriven is given opportunity to set out in writing all these matters which he wishes to have considered in relation to issues before the Court. The Court may be satisfied that all or any of such matters are not relevant."
21. I have to say that the document is Delphic to say the least. There is no reference in it to a resumed hearing of Mr Scriven's public examination. It is not possible, as I see the matter, to glean from the face of that document what precisely was intended to happen on 29 August. We have no transcript of any of the relevant hearings in the County Court. In my judgment, and consistently with what my Lord was indicating earlier this morning, the matter wants further investigation.
…
24. In all those circumstances, and for all those reasons, as I have said, I would dismiss the appeal against the Divisional Court's refusal of habeas corpus and adjourn the appeal against the committal order.
We now have transcripts of the material proceedings. These shed much light on the obscurities in the limited documentation which, as can be seen, troubled this court on the last occasion.
On 1 March 2000 Mr Scriven was adjudged bankrupt at Stockport County Court. On 19 March 2001 he was ordered to attend Stockport County Court on 18 June 2001 for his public examination in bankruptcy. He failed to attend. The public examination was adjourned generally and a warrant was issued for his arrest.
The order was captioned "In Bankruptcy". It recited that it was made:
"Upon the attendance of the Official Receiver with the Official Shorthand Writer, the non attendance of the Debtor, reading the Court file and being satisfied as to service".
It was sub-captioned "In the Matter of The Insolvency Act 1986", and the final limb of the order was that:
"The matter be listed for hearing before a Circuit Judge at Stockport County Court… on 4 July 2001 at 10.00am."
On 2 July 2001 Mr Scriven was arrested pursuant to the county court warrant. He was put up two days later, on 4 July 2001 before His Honour Judge Caulfield at Stockport County Court and was released from custody. There had been issued by the Greater Manchester police, on the day of his arrest, the charge sheet quoted by Laws LJ. This was evidently a bona fide attempt by the police to ensure that everything was regularly done, but it was not a necessary or appropriate document. The authority for Mr Scriven's arrest was the county court's warrant, and the detention authorised by it came to an end on 4 July 2001 when Judge Caulfield discharged Mr Scriven from custody.
It was on the latter occasion that the county court drew up the order which Laws LJ described as "Delphic". It again carries the caption "In Bankruptcy" and the sub-caption "In the matter of The Insolvency Act 1986". It orders that "The hearing be adjourned to 29 and 30 August 2001…". It releases Mr Scriven from custody "in respect of these proceedings". It requires Mr Scriven "to attend the adjourned hearing". It makes further provision for Mr Scriven to set out in writing "all the matters which he considers to be relevant to the issues before the court", with a further note to the effect that these may or may not be relevant. It provides for service of these written submissions on the Official Receiver, and for an opportunity to the Official Receiver to reply.
The transcript, which we now have, of the hearing leading up to the making of this order lays to rest any possible doubt about the nature of the adjourned proceeding. It demonstrates Mr Scriven's refusal, in spite of the judge's repeated attempts to focus his mind on it, to deal with the matter before the court, namely his public examination in bankruptcy. Judge Caulfield showed endless patience in giving Mr Scriven the maximum opportunity to put whatever he conceived to be his case. When the judge, at the start, explained to Mr Scriven that the reason why he had been arrested was for breach of the order to attend for his public examination in bankruptcy, Mr Scriven replied: "May I defer my reply to that one till later?" With more tolerance than many judges would have shown, Judge Caulfield said: "Of course you may." The judge went on to explain that his task was to deal with Mr Scriven's breach of the court's order to attend, and to make arrangements for the conduct, at a future date, of the public examination.
Mr Scriven fastened on the police charge sheet in order to assert that he had never been served. The...
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