Re Scriven
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE TUCKEY |
| Judgment Date | 22 April 2004 |
| Neutral Citation | [2004] EWCA Civ 543 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 2004 |
| Docket Number | C1/2004/0854, C1/2004/0855 |
[2004] EWCA Civ 543
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
ON APPEAL FROM HIS HONOUR JUDGE HOWARTH
(LIVERPOOL COUNTY COURT)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Lord Justice Laws
C1/2004/0854, C1/2004/0855
MISS L RAYNE appeared as a Litigation Friend on behalf of the Appellant
MISS C IVIMY (instructed by The Treasury Solicitor) appeared on behalf of the Respondents
Thursday, 22nd April 2004
There are two matters before the court this morning. It is convenient, first, just to describe the facts which give rise to them. On 5th July 2002, at the Liverpool County Court, His Honour Judge Howarth found Mr Geoffrey Harold Scriven guilty of a contempt of court for failing, at a hearing in the County Court on 29th August 2001, to comply with an order earlier made on 19th March 2001 in the course of bankruptcy proceedings, that he should attend court and be publicly examined. That order of March 2001 contains this warning:
"If you fail without reasonable excuse to attend your public examination at the time and place set out in the order above you will be liable to be arrested without further notice (section 364(1) of the Insolvency Act 1986).
You will also be guilty of Contempt of Court (section 290(5) of the Insolvency Act 1986) and liable to be committed to prison or fined."
A hearing was fixed for 18th June 2001 which Mr Scriven did not attend. A warrant for his arrest was then issued. He was arrested on 2nd July 2001, but released on 4th July 2001. The next hearing took place on 29th August 2001. There is a dispute as to the purpose for which that hearing was convened and that is a matter to which I must return shortly. It is said by Mr Scriven that the hearing had been ordered by His Honour Judge Caulfield on 4th July 2001 so that the court might consider certain charges which had been levelled against Mr Scriven under the Bail Act; but the judge sitting on 29th August, Miss Recorder Hughes, thought for her part that the hearing was intended to be a resumption of Mr Scriven's public examination. At all events Mr Scriven did not at that hearing answer questions pursuant to the order of 19th March. Miss Recorder Hughes made an order expressed in this way:
"The Public Examination be further adjourned to allow a formal application to be made for Mr Scriven's contempt."
At length the Official Receiver applied for Mr Scriven to be committed. It appears that that application was supported by an affidavit of 29th November 2001. We do not have that document. The matter came before His Honour Judge Howarth at Liverpool County Court on 5th July 2002. Mr Scriven did not then attend. The judge found the contempt proved and ordered that Mr Scriven be committed to prison for 6 months.
On 21st August 2002 a warrant was issued for Mr Scriven's arrest, but it was not then executed. It was reissued twice; lastly on 5th February 2004. At length Mr Scriven was arrested pursuant to the warrant (although defects in the process are alleged) on 17th March 2004. He has been detained, I understand, at Strangeways Prison in Manchester since that date.
Thereafter application was made in the High Court for leave to issue a writ of habeas corpus. That was done by Miss Lilian Rayne on behalf of Mr Scriven. She has also appeared before us today. She and Mr Scriven are both executive officers of the Litigants in Person Society. Mr Scriven is subject to a Civil Proceedings Order made against him by the Divisional Court on 4th February 2000 pursuant to section 42 of the Supreme Court Act 1981. He is, accordingly, what is generally known as a vexatious litigant.
The habeas corpus application came before Gage J and Keith J sitting in the Divisional Court on 5th and 6th April 2004. They allowed Miss Rayne to conduct the proceedings. There was a question whether Mr Scriven needed section 42 leave from a High Court judge to allow the habeas application to be made. The Divisional Court for its part doubted whether that was so, but in any event considered the merits of the application as they were presented by Miss Rayne.
It is to be noted in passing that there were and indeed are procedural difficulties in Miss Rayne conducting the proceedings on Mr Scriven's behalf, but we, like the Divisional Court, have heard her, Mr Scriven not being present.
The Divisional Court refused the application to issue a writ of habeas corpus, essentially on the basis that that was not the proper means to challenge the legality of Mr Scriven's detention. That should have been done, the court held, by way of appeal against the finding of contempt made on 5th July 2002 in the County Court.
In my judgment the Divisional Court were quite right to dismiss the application for habeas corpus. In Linnett v Coles [1987] 1 QB 555, it was held that save in exceptional circumstances habeas corpus is not the appropriate remedy for appealing against committal orders (See for example per Lawton LJ at 5618) . In general it is to be borne in mind that the court will not grant a writ of habeas corpus where a person is detained pursuant to a conviction by a court of competent jurisdiction (see for example Featherstone [1953] 37 Cr App R 146) . I add that comprehensive guidance as to the proper routes of appeal in committal matters has more recently been given in this court in Hurst v Barnet London Borough Council [2002] EWCA Civ 1009.
The Divisional Court held (transcript paragraph 13) that exceptional circumstances might arise where an appeal was not capable of putting things right. Again, in broad terms I agree, subject to two matters. Mr Scriven did not need permission to appeal the committal order: that was because section 13 of the Administration of Justice Act 1960 confers an appeal as of right in such matters. The two points, however, are these: (1) Mr Scriven is way out of time for appealing, although there is an argument as to when he had notice of the order; and (2) the need, if there be a need, for section 42 leave. Again the Divisional Court did not consider that section 42 leave was required for the appeal, but they granted it in case it was.
An appeal against the committal order and an appeal against the refusal of habeas corpus have now been lodged and are being advanced by Miss Rayne. Those are the two matters before the court.
It is plain to my mind that the habeas application is hopeless unless there is some arguable legal defect in Mr Scriven's detention which could not be cured by an appeal against the committal order. The Divisional Court held that there was no such defect.
I shall come to what I regard as the only issue of any potential substance relating to the committal order in a moment, but first there were a number of other points taken by Miss Rayne. She said, though it has not figured, I think, in her argument today, that the Official Receiver himself was allegedly in contempt of court by advertising Mr Scriven's bankruptcy petition when a stay against its advertisement was in...
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