Habeas Corpus

R J Sharpe, “The Law of Habeas Corpus”, pub. Clarendon, Oxford, 1976



“.... the use of habeas corpus to combat executive committals in the sixteenth and seventeenth centuries. The lessons of this period continue to have great constitutional significance to the present day. .... a fundamental part of the British constitution.


“.... The words simply represented a command, issued as a means or interlocutory process, to have the defendant to an action brought physically before the court. .... Habeas corpus was used not to arrest andimprison, but to ensure the physical presence of a person in court on a certain day. .... .... for the association of these words with liberty, further developments was required.”



“.... these [other] pedieval writs were not available where the imprisonment was by virtue of the Crown’s order, and could not, therefore, be used by the lawyers of the seventeenth century in their contests with the Stuarts, contests which were to establish habeas corpus firmly in the English constitution.”



“.... the fifteenth and sixteenth centuries mark the transition of the writ of habeas corpus from a device to secure the physical presence of a party so that he can undergo some other process, to an unequivocal demand for the reason for the applicant’s detention so that the court could judge the sufficiency of that reason. ....”



“.... the use of habeas corpus with certiori .... ”


[“The New Shorter Oxford English Dictionary”, 1933/93, p365;

certiorari; an order or (formerly) writ issuing from a superior court (in England the High Court) to an inferior court and calling up the records and proceedings in some cause for review or a speedier judgement.]



“.... Emerging in these cases was the concept that habeas coprus required a cause to be shown for imprisonment, and that the legality of the cause could be tested. .... habeas corpus was becomiung .... more and more a remedy to secure release from imprisonment.”



“The Habeas Corpus Act 1640 ....”



“.... instances in the seventeenth century of its use in used custody cases, ....”



“.... Habeas Corpus Act 1679 ....”



“ .... Habeas Corpus Acts of 1816 and 1862, .... the Administration of Justice Act, 1960, ....”



“Every case in which habeas corpus is used by one party to gain custody of a child or other person from the respondent may be taken as an example of a third party application.”



“Where there is an element of consent on the part of the person allegedly in fetters, a third party cannot initiate proceedings. For example, in several old cases, masters brought habeas corpus proceedings to recover their apprentices who had been conscripted into military service, but it appeared that the apprentice was quite content and habeas corpus was refused on the grounds of consent. Ordinarily, thje party applying must clearly make out a case on the facts showing why the court should be moved by a stranger rather than the prisoner himself or the application will be refused. An application for a writ usually is supported by an affidavit from the prisoner, and the court requires an explanation of the circumstances if such an affidavit is not filed.”



(a) Third Party Audience in Court

While the courts have been willing to entertain applications launched by third parties in the circumstances outlined above, it has always been preferred to have the formal court application made on motion by consel.


[Shorter Oxford Dictionary, q.v., p525;

counsel    7. A body of legal advisers engaged in the direction or conduct of a court case.]


Wives and fathers of prisoners have, on occasion, been allowed to appear in court to ask for habeas corpus, but on each occasion it has been stated that this will be allowed only in ‘exceptional circumstances’. .... If a layman represented the prisoner’s interest, then this would be a departure from the normal rules restricting the right of audience in the courts to legally qualified people. Legal aid is available, failing which an approach can preobably be made to the Official Solicitor.”