Thursday, 19 July 2012

Law Report - unlawful imprisonment of children

JS v Miller [2012] SC (Bda) 32 App (13 June 2012).

A fourteen year old appealed against the decision of the Family Court. He submitted that (1) the Family Court had no right to sentence him to corrective training; and (2) the Bail Act did not apply to children.
It was held by Kawaley CJ that it was abundantly clear that corrective training is not a sentence that can be passed on a child under the age of 16 and that to have imposed such a sentence was wholly inexplicable and "astonishing" [12]. Furthermore, any sentence of corrective training must specify the maximum period of the sentence [22]. The Bail Act 2005 is intended to apply to children as well as to adults [29].

More generally, sentencing courts must exercise constant care to ensure that no person accused or convicted of a criminal offence is unlawfully detained. If an unlawful sentence is believed by counsel involved in a case to have been imposed, prompt action must be taken to bring the unlawful detention to an end [16].

Comment - in a case where somebody has been unlawfully imprisoned by a court, the "Great Writ" of habeas corpus might be used as a swift remedy to get before the Supreme Court to release a prisoner. Habeas corpus is one of the oldest and most effective remedies for preventing unlawful imprisonment. When the court receives the writ, it will command the production of the prisoner before the court, make inquiries into whether the detention is lawful and, if necessary, order the release of the prisoner. It's not supposed to be used for a criminal appeal but it is probably arguable that it is appropriate when it is claimed that the imprisonment is wholly unlawful, as opposed to merely excessive.

No comments:

Post a Comment