CO/4418/2008 
Neutral Citation Number: [2008] EWHC 2360 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 13th May 2008
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE PENRY‑DAVEY 
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Between: 
MCCANN 
Claimant

v 

HERTFORDSHIRE CONSTABULARY 
Defendant 
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Mr Rose (instructed by Lawrence & Co) appeared on behalf of the Claimant
The Defendant was not represented and did not attend
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  This matter comes before us today as an application for an order of habeas corpus ad subjiciendum.  The application was issued on 9th May.  The factual background is as follows. 
2.	The applicant, Barbara McCann, was arrested on 3rd May on suspicion of burglary.  The arrest was by the Hertfordshire police and she was taken to Watford Police Station, where she remained until late on the evening of 4th May, her detention having been extended to enable, amongst other things, further questioning for offences that were being investigated by neighbouring police forces.  However, no such questioning by any neighbouring force had occurred prior to 11.00 pm on 4th May.  At that time she was charged with the offence for which she had been arrested and she was granted bail. 
3.	In the early afternoon of 5th May she was rearrested by the Hertfordshire police, acting on behalf of the Bedfordshire police.  This time she was taken to Hemel Hempstead police station, where she remained for some time being questioned about Bedfordshire matters.  We are told that an officer of the Bedfordshire police accepted that that force had been aware of the detention in Watford, but had not gone to Watford police station because they were awaiting a call from the Hertfordshire police to the effect that they had finished questioning Ms McCann.
4.	It seems that the Bedfordshire police had assumed that the Hertfordshire police would refuse bail, enabling an application to be made at court for a 3‑day lie‑down pursuant to section 128(7) of the Magistrates' Courts Act 1980.
5.	At the time when an application was first made to this court by telephone to the out‑of‑hours judge on the night of 5th May, Ms McCann was still in the custody of the Bedfordshire police.  By reference to sections 31, 41 and 42 of the Police and Criminal Evidence Act 1984, Mr Rose submits that that detention was unlawful.  Without further analysis, I am content to assume that, without finding that it was so.
6.	The out‑of‑hours judge, Ouseley J, refused to make any order, taking the view that the matter ought to be considered in open court.  The application having been issued on 9th May 2008, arrangements were made for us to hear it today.
7.	What has happened in the meantime is predictable.  The Bedfordshire police have completed their initial investigation and have charged Ms McCann with a further offence or offences, including one of conspiracy.  She was taken before the appropriate Magistrates' Court.  The outcome of that hearing is that there has been a transfer under section 51 of some matters, and an arrangement has been made for committal proceedings in the Magistrates' Court in relation to others.  More importantly, she was refused bail by the Magistrates' Court and now remains remanded in custody.  In other words, she is in custody now, not as a result of any decision of either police force, but by reason of an order made in the Magistrates' Court.
8.	Mr Rose, for whose diligent and careful submissions, both written and oral, we are most grateful, accepts that in the great majority of cases there would now be no purpose in pursuing habeas corpus proceedings.  However, he submits that this case is an exceptional one characterised by an illegality so fundamental as to taint the proceedings thereafter, up to and including the current detention by order of the Magistrates' Court.  He accepts that it would have to be a very exceptional case for this court further to involve itself.  The fact is that if, as I am prepared to assume, there was unlawfulness in the detention by the Bedfordshire police, that could be the subject of an action for damages at a later date.  Moreover, it could, and Mr Rose tells us will, result in an application in the Crown Court to exclude evidence obtained during the period of that detention, presumably pursuant to section 78 of the Police and Criminal Evidence Act 1984. 
9.	Mr Rose's researches have taken us to "The Law of Habeas Corpus", second edition, by RJ Sharpe, at page 187 of which there is expressed the view that: 
"... release on habeas corpus will only constitute a bar to further proceedings where those proceedings would involve the potential relitigation of the same point." 
The passage continues: 
"This could help to solve those cases where the judge considers that the original proceedings are so tainted with illegality that the importance of maintaining compliance with legal standards requires that a remedy be given." 
10.	It is Mr Rose's submission that we are in that territory.  He does not resist the description of what happened in this case as being, in his words, "[the] type of behaviour [which] will not be tolerated".  Moreover, he points to authority in which the court has continued to hear an application such as this, notwithstanding that the subject has been released, and has concluded a hearing in favour of such a person so as to provide an authoritative ruling and mark the court's disapproval of the unlawful detention: see R v Governor of Canterbury Prison, ex parte Craig [1990] 91 CrAppR 7.
11.	I have considered the evidence that has been submitted to us, both by the solicitors and, although not evidence in the strict sense, by Mr Rose's skeleton arguments.  For my part, I am wholly unconvinced that there is any real likelihood of a finding of deliberate manipulation in the course of proceedings of the kind that can be accommodated in this court.  It seems to me that the strong likelihood of a hearing, essentially on evidence on paper, would be a conclusion that there was confusion, misunderstanding and a failure of communication, rather than deliberate manipulation.
12.	Mr Rose suggests that we ought to be careful not to prejudge the issue.  I do not consider that I am doing that; I am merely forming an assessment, on the basis of the material before me, as to what the likely outcome might be so as to evaluate the seriousness of the case as it is advanced.
13.	In my judgment, this is not shown to be an exceptional case, as Mr Rose suggests that it is.  I consider it to be highly improbable that anything establishing habeas corpus proceedings would affect the lawfulness of the current detention pursuant to the order of the Magistrates' Court.  I accept Mr Rose's submission that any later claim for damages would be of very limited value.  However, I do not suppose that that is the real reason for wishing to take this matter further.  The real reason is that Mr Rose would wish to urge upon the judge in the Crown Court that evidence obtained in Hemel Hempstead Police Station ought to be excluded.  In my judgment, the correct forum for that issue to be resolved is not this court; it is the Crown Court when it becomes properly seised of the matter.  Accordingly, I do not consider this to be an exceptional case and I would refuse the application. 
14.	MR JUSTICE PENRY-DAVEY:  I agree. 
15.	LORD JUSTICE MAURICE KAY:  Thank you, Mr Rose. 
16.	MR ROSE:  My Lords, thank you.  Can I just mention the issue of costs?
17.	LORD JUSTICE MAURICE KAY:  Yes, what is your situation?
18.	MR ROSE:  I understand that we have at the moment limited funding such as to simply prepare the paperwork, but not to prepare the research and skeleton argument that I have endeavoured to provide to the courts.  I am grateful to hear that that assisted the court today.  I realise you cannot, as a matter of course, extend the current certificate, but if you were to make an observation about whether you found the research useful, such as legal aid ought to be considered for it, above and beyond what has currently been granted ‑‑
19.	LORD JUSTICE MAURICE KAY:  What are you covered for?  You are covered for the hearing, are you? 
20.	MR ROSE:  I am not even sure we are covered for that much.  (Pause).  We are covered for the hearing. 
21.	LORD JUSTICE MAURICE KAY:  If you are covered for a hearing, are you not covered for all the preparation of the hearing?
22.	MR ROSE:  There is certainly some logic to that argument.  All I can say is that it has been prepared in the face of a very difficult, as my Lord has rightly identified, problem to the original cause of action.  As a result, it has caused considerably more work than the standard habeas would have done, particularly in an emergency funding habeas, which is what this is. 
23.	MR JUSTICE PENRY-DAVEY:  Where does that take you, Mr Rose?  You do not seek an order, you simply seek encouragement? 
24.	MR ROSE:  My Lord, I am not experienced as I should be at this court.  If you have the power to order it, then I do seek it. 
25.	LORD JUSTICE MAURICE KAY:  No, I do not think so.  We are not cost judges for that purpose.  You have a representation order.  You have told us that.  I am perfectly content to repeat what I said in the judgment, namely that we found your written submissions, as well as your oral submissions, helpful and diligently prepared, but I think you have to fight your battles elsewhere if you come to any difficulties. 
26.	MR ROSE:  I am most grateful.  Thank you, my Lord. 
27.	LORD JUSTICE MAURICE KAY:  We shall return to you "The Law of Habeas Corpus". 
28.	MR ROSE:  My Lord, I am being advised by my instructing solicitor that the correct thing is for the costs to be assessed by the Legal Services Commission. 
29.	LORD JUSTICE MAURICE KAY:  Yes, that is right.  That shall go in the order.