Habeas Corpus

I

Introduction

Habeas Corpus (Latin, “[that] you have the body”), a writ or order issued by a court to a person who has custody of another, commanding him or her to produce the detained person in order to determine that the detention is legal. The writ of habeas corpus is of English origin; its original purpose was to liberate anyone illegally detained, and it is still a protection against arbitrary imprisonment.

II

History

The earliest use of the writ as a constitutional remedy against the tyranny of the Crown took place in the latter part of the 16th century, when it was applied on behalf of those committed to prison by the Privy Council. Many ways of avoiding the effectiveness of the writ were subsequently developed. In 1641, however, Parliament, by legislation that abolished the Court of Star Chamber, tried to increase the effectiveness of the writ. This law provided that anyone imprisoned by a court exercising jurisdiction similar to the Star Chamber, or by command of the sovereign or of the Privy Council, should be granted a writ of habeas corpus without delay; and that the court was to determine within three days after the return of the writ the legality of such imprisonment. The subsequent refusal of judges to issue writs of habeas corpus during holiday periods resulted in the passage by Parliament of the Habeas Corpus Act of 1679. That statute imposed severe penalties both on any judge who refused without good cause to issue the writ and on any officer or other person who failed to comply with it. After that date the authority of the court was paramount to any order of the sovereign, and the writ became a powerful weapon for the protection of the liberty of the monarch's subjects. The statute, however, dealt only with imprisonment for criminal offences, and it was not until 1816 that its benefits were extended to those detained for other reasons.

III

Modern Use

Protection against arbitrary imprisonment by the right of habeas corpus is not found in continental Europe. In the democratic countries of Western Europe, however, the codes of criminal procedure require that an arrested person be informed with reasonable promptness of any charges brought against him or her and be allowed to seek legal counsel. In many other countries, people are subjected at times to lengthy periods of imprisonment without being informed of the charges. The writ of habeas corpus has been adopted in many Latin American countries, either by constitutional provision or statutory enactment, but has frequently been nullified in practice during times of political or social upheaval.

IV

English Law

Habeas corpus is available in all cases of wrongful deprivation of liberty, against governments and private individuals. It is considered to be an extraordinary remedy and will be used only where ordinary remedies are inadequate or unavailable.

Historically, habeas corpus is the natural consequence of Magna Carta; the Bill of Rights in England meant that there was no question of its not being used against the government. It has been suspended from time to time, in this century particularly during periods of war, when suspect people were detained without the legality of the detention being determined before a court.

Habeas corpus will not be granted when an applicant is the subject of a criminal case, or appeal. Neither will it be used to examine the detention of a Member of Parliament who is in contempt of the House of Commons.

Its modern use is most common as the appropriate way of challenging a detention prior to extradition, and by people seeking to avoid deportation.