The High Court has held that James Macharia was unlawfully detained in Cloverhill Prison because the committal warrant authorising his detention did not show on its face that a District Judge had ordered his remand in custody.
Mr Justice Michael Peart delivered judgment on January 30, 2009, in an Article 40 application concerning a warrant dated November 17, 2008. Macharia had already been released on bail by the time the substantive application was heard, so his release was no longer in issue. The court nevertheless ruled on the legality of the detention because Macharia sought his costs and because the judge considered the issue important for future cases.
There was no dispute that a District Judge had in fact remanded Macharia in custody to November 21, with bail terms set. The problem concerned the document used to detain him at Cloverhill Prison.
The committal warrant had been signed by a District Court clerk following a 2008 legislative amendment allowing clerks to sign warrants issued by District Judges. However, the old prescribed form had simply been altered so that “District Court Clerk” replaced “Judge of the District Court” beneath the signature line. It did not state that a judge had actually ordered the remand.
Peart J held that this omission was decisive. A warrant depriving a person of liberty had to show on its face the lawful authority for detention. Evidence produced later showing that a judge had made the remand order could not cure that defect.
The judge said the warrant therefore appeared to contain a command by the clerk herself to detain Macharia, although the clerk had no power to issue such a command independently. He expressly found no bad faith on her part.
The ruling establishes that a clerk-signed warrant must record that the District Judge or court made the remand order. As Macharia had already been released, no release order was required, but the court held that his detention under the defective warrant had been unlawful and that he was entitled to the costs of the application.