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Habeas corpus

The writ of habeas corpus ad subjiciendum, commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the Sovereign has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that court, at the instance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal.

The person illegally imprisoned or detained in confinement without legal justification is, both at common law and by statute, entitled to apply for a writ of habeas corpus, but it is not essential that the application should proceed directly from him.

Any person may, on behalf of the person illegally imprisoned or detained, institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment, and any person who is legally entitled to the custody of another may apply for the writ in order to regain that custody. In any case where access is denied to a person alleged to be unjustifiably detained, so that there are no instructions from the prisoner, the application may be made by any relation or friend on an affidavit setting forth the reasons for its being made.

A mere stranger or volunteer, however, who has no authority to appear on behalf of a prisoner or right to represent him will not, it seems, be allowed to apply for habeas corpus.

Save in relation to applications by parents or guardians of children, an application for a writ of habeas corpus ad subjiciendum must be made to a judge in court, except that: (1) if the court so directs, it must be made to a Divisional Court of the Queen’s Bench Division; (2) where there is no judge sitting in court, it may be made to a judge otherwise than in court; and (3) if the application is on behalf of a child, it must be made in the first instance to a judge otherwise than in court.

The application may be made without notice being served on any other party, and must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint. However, where the person restrained is unable for any reason to make this witness statement or affidavit, it may be made by some other person on his behalf. Such an affidavit must state that the person restrained is unable to make the witness statement or affidavit himself, giving the reason.

The application should, as a rule, be made by counsel or solicitor advocate, but a litigant in person may in cases of urgency be allowed to apply. An application for habeas corpus has virtually absolute priority over all other court business.

On the application for the writ, the applicant will not, in general, be allowed to raise any issue or question or adduce any fresh evidence on a matter which he could have, but did not, raise or adduce before any court which ordered his detention.

The court or judge to whom an application without notice for a writ of habeas corpus ad subjiciendum is made may make an order forthwith for the writ to issue, but if such an order is not made, the court or judge may exercise the following powers:

  • (1)     where the application is made to a judge otherwise than in court, he may direct that a claim formfor the writ be issued or that an application for the writ be made by claim form to a Divisional Court or to a judge in court;
  • (2)     where the application is made to a judge in court, he may adjourn the application so that notice of it may be given, or may direct that an application be made by claim form to a Divisional Court;
  • (3)     where the application is made to a Divisional Court, it may adjourn the application so that notice of it may be given.

The claim form must be entered in the Administrative Court List and must be served on the person against whom the issue of the writ is sought. The court or judge has power to direct service on other persons. Unless the court or judge otherwise directs there must be at least eight clear days between the service of the claim form and the date named in it for the hearing of the application.

Every party to an application for a writ of habeas corpus must supply to every other party on demand and on payment of the proper charges copies of the witness statements or affidavits which he proposes to use at the hearing of the application

In recent years the practice has been for the court to dispose of the application on the adjourned hearing of the application for the writ rather than on the substantive hearing. Thus, on the hearing of an application for a writ of habeas corpus, the court or judge may, in its or his discretion, order that the person restrained be released, and the order is a sufficient warrant to any governor of a prison, constable or other person for the release of the person under restraint. In such cases the writ itself is not formally issued.

In habeas corpus proceedings, if the power to detain depends upon the precedent establishment of an objective fact, the court or judge will decide whether the fact exists. The burden of proof rests on the applicant to show that there is a prima facie case that the detention is unlawful, and the burden then passes to the restraining body or person to show that the restraint is lawful. The standard of proof required of the restraining body or person is the civil standard but, since grave issues of personal liberty are involved, the degree of probability required will be high.

On the hearing of the adjourned application, it is not the practice for the person detained to be brought up before the court unless the court or judge who hears the without notice application has so directed, or the court or judge so orders in the course of the hearing.

Evidence is by witness statement or affidavit, and the court has power to order the cross-examination of deponents.

If the court or judge orders the writ of habeas corpus to issue, the order cannot be fettered by any conditions or terms.

Where the writ is ordered to issue, the court or judge by whom the order is made must give directions as to the court or judge before whom, and the date on which, the writ is returnable