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You are here: BAILII >> Databases >> The Law Commission >> Judicial Review And Statutory Appeals (Report) [1994] EWLC 226(11) (09 September 1994) URL: http://www.bailii.org/ew/other/EWLC/1994/226(11).html Cite as: [1994] EWLC 226(11)

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PART XI HABEAS CORPUS

Functions of habeas corpus

11.1      The writ of habeas corpus is "the most renowned contribution of the English common law to the protection of human liberty".^[1] It is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention^[2] and is available in all cases of wrongful deprivation of personal liberty.^[3] It is unquestionably available against the executive.^[4] In practice today habeas corpus is employed sparingly, mainly in relation to: extradition proceedings, deportation, illegal immigration and detention under the Mental Health Act 1983.
11.2      Although the case law is riddled with contradictions,^[5] the modern tendency is to view the writ as a specific application of principles of common law judicial review to cases affecting the liberty of the subject.^[6] In ex p Khawaja Lord Scarman made this clear when he observed that:^[7]

"There are, of course, procedural differences between habeas corpus and the modern statutory judicial review ... in the instant cases the effective relief sought is certiorari to quash the immigration officer's decision. But the nature of the remedy sought cannot affect the principle of the law. In both cases liberty is in issue. 'Judicial review' under R.S.C., Ord 53 and the Supreme Court Act 1981 is available only by leave of the court. The writ of habeas corpus issues as of right. But the difference arises not in the law's substance but from the nature of the remedy appropriate to the case".

Procedure

11.3      Like judicial review, habeas corpus is only available in the High Court. The procedure for obtaining it is contained principally in Order 54. Most applications are made in the Queen's Bench Division, but applications relating to the custody, care, or control of a minor must be made in the Family Division^[8] (where a substantially similar procedure applies). Applications are made to a judge in Court if one is sitting,^[9] or to the Divisional Court if the Court so directs. An application "has virtually absolute priority over all other court business,"^[10] which might make it prima facie more suitable than judicial review in cases of emergency, especially with regard to immigration.^[11] In a criminal cause or matter, where a single judge does not order the release of the person restrained, he is required to direct that the application be made by originating motion to the Divisional Court.^[12]

The response to Consultation Paper 126

11.4      In the consultation paper^[13] we invited views on whether some rationalisation and simplification of the various procedures in Order 54 would be desirab1e.^[14] Many consultees felt that there should be no alteration of existing procedures for fear of lessening the constitutional power and importance of the remedy.^[15] There was, however, some support for subsuming habeas corpus into the judicial review procedure, where it could operate as a separate form of relief. It was said that certiorari and declarations achieve almost all in terms of remedies that the writ of habeas corpus can achieve, particularly now that interim relief can be granted against ministers of the Crown and Crown servants, who are also subject to the contempt jurisdiction.^[16]
11.5      It was argued that subsumption of habeas corpus into the Order 53 procedure and the consequent rationalisation would have three advantages.^[17] First, it would no longer be necessary to commence two separate forms of proceedings where the challenge to a person's detention was based on both an alleged jurisdictional and non-jurisdictional error. Secondly, the type of application made would no longer have to depend on that often difficult distinction.^[18] Thirdly, a single procedure would mean that in all cases where the liberty of the person is at stake, the court should act with expedition - whether the application for review is made under Order 53 or Order 54 and whether or not the unlawfulness involves an error of precedent fact. These three reasons are premised on habeas corpus having a different scope of review and on the need to use certiorari-in-aid of habeas corpus.^[19]
11.6      We do not, however, recommend the subsumption of habeas corpus into the judicial review procedure. The fact that habeas corpus is used very infrequently^[20] suggests that any inconvenience created by the different procedures is likely to be marginal. There are, moreover, a number of powerful arguments against such subsumption which we have found convincing.
11.7      First, as indicated, the arguments for subsumption are premised on habeas corpus having a different scope of review. However, for reasons which we set out below,^[21] we have concluded that the remedies of judicial review and habeas corpus are subject to a common principle and that the scope of review should essentially be the same.
11.8      Secondly, the writ's efficacy over its long history stems from its capacity to operate in a very short time and to secure the production of the appellant as of right. This suggests that the discretionary nature of Order 53 procedure would not be suitable for habeas corpus and could be seen as eroding ancient and vital constitutional liberties. It is arguable that within a unified procedure the discretionary nature of judicial review could infect habeas corpus.
11.9      Thirdly, there are concerns about the operation of a leave requirement (in our recommended terminology, a preliminary stage) even though the court is likely to take a generous view in cases involving detention or imprisonment.^[22] If leave or a preliminary stage formed part of a habeas corpus application in cases of emergency either the substantive or the preliminary stage would be an empty formality, the issues being entirely decided at one or the other hearing. If a judicial decision that the application be allowed to proceed to a substantive hearing was required there might be little advantage in practice over certiorari.^[23] It would also be necessary to resolve the question of appeal to the House of Lords. At present an applicant cannot appeal to the House of Lords against a refusal of leave to apply for judicial review^[24] but he can, with leave, against a refusal of habeas corpus.

The scope of review in habeas corpus

11.10      Although this issue, concerning as it does the substantive grounds for review, falls outside the Commission's programme item,^[25] the case for subsuming habeas corpus into the Order 53 procedure is premised on it having a different scope of review and on the need to use certiorari-in-aid of habeas corpus. It has therefore been necessary for us to form a view on the issue. As indicated, we have concluded that judicial review and habeas corpus are subject to a common principle and that the scope of review of these remedies is and should be essentially the same. Our reasons are set out in the paragraphs that follow.
11.11      The common law and statutory^[26] development of habeas corpus was such that in 1983 in ex p Khawaja Lord Scarman was able to make the statement quoted in paragraph 11.2 above and Lord Wilberforce to state that he did "not think it would be appropriate unless unavoidable to make a distinction between the two remedies" and that he proposed to deal with both "under a common principle".^[27] It was stated in 1989 that in ex p Khawaja the court was indicating that "while distinct historically, in practice the two remedies [habeas corpus and judicial review] should be effectively assimilated, and that for the purposes of the scope of review, both could be dealt with under a common 'principle.'"^[28]
11.12      The position was changed in 1991 by two decisions of the Court of Appeal. The first suggested and the second held that the scope of habeas corpus was, and should be, narrower than the scope of judicial review. In R v Secretary of State for the Home Department, ex p Cheblak Lord Donaldson MR stated that the two forms of relief are "essentially different":

"A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue."^[29]

11.13      In the second case, R v Secretary of State for the Home Department, ex p Muboyayi, ^[30] it was held that where the applicant was not challenging an error of precedent fact on which his or her detention was based, then unless and until that administrative decision was impugned by judicial review, an application for habeas corpus could not succeed. Lord Donaldson MR, with whom Glidewell and Taylor LJJ agreed, stated that the habeas corpus procedure did not allow the reasons for the underlying administrative decision to be challenged. He said that Cheblak was to be distinguished from Khawaja since, while the right to detain the applicant depended on a series of precedent facts, in Cheblak the existence of those facts was not challenged.^[31] If it had been (or could have been), habeas corpus would have issued. However, the detainee contended that he should not have been refused leave to enter and that no question of his removal should have arisen. It was thus a challenge to the underlying administrative decision and could only proceed by way of judicial review. 11.14 We respectfully believe that there are a number of difficulties with this narrow view of the scope of review in habeas corpus. First, the important Privy Council decision in Armah v Government of Ghana,^[32] is authority for a wider scope of review. This decision was not before the Court in ex p Cheblak and, although cited in ex p Muboyayi, it was not referred to in the judgments.
11.15      Secondly, when determining the scope of review in habeas corpus, in neither case did the Court of Appeal consider issues other than those concerned with precedent facts. A number of these point to a wider scope of review. Thus, the "no evidence" rule is indisputably a head of review in habeas corpus, but, before the developments started by Anisminic v Foreign Compensation Commission, it was an error within the jurisdiction of the decision-maker.^[33] Again, Armah v Government of Ghana^[34] shows that error of law on the face of the record (if it exists since Anisminic) is also a ground upon which habeas corpus applications can be based.^[35] Armah v Government of Ghana and cases such as R v Governor of Brixton Prison, ex p Mourat Mehmet^[36] also suggest that, although not explicitly stated to be a ground for review in habeas corpus proceedings, a test of Wednesbury unreasonableness is applied in the case law.^[37]
11.16      Thirdly, ex p Cheblak and ex p Muboyayi appear to proceed on the basis that the only challenge to jurisdiction where the writ of habeas corpus can lie is a challenge to the existence of a precedent fact. Yet the better view is that, since the 1969 decision in Anisminic v Foreign Compensation^[38] all errors of law go to jurisdiction.^[39] Accordingly, in principle if there is any error of law there is jurisdictional error and the writ of habeas corpus can issue.
11.17      The approach in ex p Cheblak and ex p Muboyayi may reflect the difference between lack of jurisdiction in the narrow and original sense of being entitled to enter on the inquiry (i.e. whether there is authority to consider the detention) and the wider sense which encompasses situations in which a tribunal which has undoubted power to enter on an inquiry has done or failed to do something in the course of that inquiry which is of such a nature that its decision (to detain) is a nullity. Accordingly, the scope for habeas corpus was considered only to extend to lack of jurisdiction in the narrow sense, whereas the scope of judicial review, which used to be similarly restricted, has since the 1969 decision in Anisminic v Foreign Compensation Commission,^[40] widened to include lack of jurisdiction in the wider sense. In practice, however, the errors which may be challenged by habeas corpus have not been confined to the narrow sense of jurisdictional error^[41] and certiorari-in-aid has traditionally facilitated rather than broadened review.^[42]
11.18      Lord Donaldson, in ex p Muboyayi, accepted that habeas corpus had been extended "to include what at that time could also be considered under certiorari" but he did not think that it could ."bring in all the considerations which are relevant on an application for judicial review".^[43] He stated that:

"[T]he evolution of the new and extended system of judicial review under R.S.C. Ord 53 with its in-built safeguards would, I think, justify us in confining the ambit of the writ of habeas corpus in the way in which I held that it was confined in my judgment in Cheblak's case."

11.19      There is good authority for the argument^[44] that on an application for habeas corpus the court may consider every matter affecting the legality of the detention^[45] and that no further or different proceedings are necessary. In view of the deliberate decision not to reform habeas corpus when the other prerogative remedies were reformed, we believe that those reforms do not and should not affect its scope. Accordingly, we do not accept the arguments for subsumption of habeas corpus into the judicial review procedure.
11.20      Although the law would be conceptually clearer if Order 54 were amended to make it clear that habeas corpus encompasses all matters affecting the legality of the detention, as this concerns the substantive grounds for review, this falls outside our programme item.^[46] The result is in effect judicial review without leave and without time limit, but in a very limited circumstance. This is in any case only a restatement of the ancient constitutional rationale that habeas corpus exists to free an individual from unlawful detention.^[47]

Habeas corpus and interim relief

11.21      The scope of habeas corpus and the relationship between that remedy and judicial review is also important in the context of interim relief. In our consultation paper we proposed a new form of interim relief to be available at the leave stage in judicial review to allow a detainee who could show strong prima facie grounds of illegality (under Order 53) to be released, pending the substantive hearing.^[48] However, if the application is made under Order 53, there is no need for this new form of interim relief. In R v Secretary of State for the Home Department, ex p Turkoglu^[49]the Court of Appeal held that the High Court has an inherent jurisdiction to grant bail in judicial review proceedings.^[50]
11.22      In cases where entrants are detained under the Immigration Acts the position is somewhat different. In Re Vilvarajah's application for bail,^[51] the Court of Appeal laid down guidelines for granting bail. If the applicant is being detained pending a decision to grant or refuse leave to enter the UK, then the adjudicator has jurisdiction to grant bail.^[52] Where the applicant has been refused admission and is being held pending deportation, and the Secretary of State refuses to allow bail, the court will not grant bail in judicial review proceedings unless the Secretary of State has committed an error in refusing temporary admission or the decision is Wednesbury unreasonable. 11.23 Bail can be granted in habeas corpus applications under the inherent jurisdiction of the court. However, in immigration cases (as above) the Court of Appeal has held that an immigrant on whom a deportation order had been served was not to be granted bail pending determination of an application for habeas corpus, for fear that he would abscond if it were granted.^[53] But in cases where the detainee's removal from the country is imminent, the court can serve the writ ex parte. This will have the effect that the "gaoler'' becomes responsible to the court in place of the authority which ordered the detention,^[54] giving the court direct authority over whether or not the detainee actually leaves the country.
11.24      The above analysis points to the existence of two almost equally advantageous routes for unlawfully detained applicants to obtain their liberty. This is not an indefensible luxury, particularly when there are only minutes to spare before an applicant already deprived of his or her liberty is (perhaps irreversibly) removed from the jurisdiction. Either procedure should be (and is) available to counter illegality which may have such serious consequences. If the courts, however, follow the decision in Muboyayi, then the applicant (or their advisors) will be limited to making an emergency application for leave to apply for certiorari in relation to the decision to deport. In such a case the judge would be able to grant interim relief, as in Re M, to prevent removal from the jurisdiction, until the substantive hearing could be held or proper consideration could be given to the application for leave. We make no recommendations for reform.

Appeals

11.25      The present procedure in habeas corpus is split between two different routes, civil and criminal.
11.26      Civil: On the civil side appeal lies to the Court of Appeal from the refusal or grant^[55] of an order for the release of the person detained by either a single judge or the Divisional Court; in neither case is leave to appeal required. From there appeal lies to the House of Lords, provided leave to appeal is granted.^[56]
11.27      Criminal: In criminal cases, no appeal lies from the decision of a single judge, whether he orders or does not order release.^[57] If the judge, however, does not make an order for release, he must direct that the application be made by originating summons to the Divisional Court,^[58] a provision with similar effect to a right of appeal. In criminal cases, unlike civil cases, an order may be made for the continued detention or bailing of the applicant, pending the appeal in the House of Lords, in which case the applicant's right to liberty will depend upon the final determination on appeal.^[59] Such an appeal lies directly to the House of Lords, and requires the leave of either the Divisional Court or the House of Lords.^[60] The respondent can also appeal against an order by the Divisional Court for the release of the person detained.^[61]
11.28      We consider that there is no need, especially in the light of the very small number of applications for habeas corpus, for the continuation of fundamental differences between civil and criminal appeals. Indeed, in an area of the law where historical anomalies abound, it is prima facie desirable for the procedures within habeas corpus to be made the same, if this can be done without removing existing rights. The small number of cases means that few practitioners will ever become familiar with this area of the law.
11.29      We were minded to recommend that the appeal procedure for both civil and criminal applications should be the same and to achieve this by giving a single judge power both to refuse and to grant the application for the issue of the writ.^[62] We describe the scheme we favour, and which we sought to develop into a recommendation with draft legislation, below. However, for the reasons set out below, and with some regret, we ultimately concluded that it is not possible to make such a recommendation in the context of the present report.
11.30      The proposed scheme: In criminal cases giving a single judge power both to refuse and to grant an application for habeas corpus would have enabled a judge on circuit to deal with the whole of the application more quickly than could be done if he had to refer the case to the Divisional Court in London as it now has to be if he is minded to refuse to release the person detained. If the judge refused to grant the application for the issue of the writ, the applicant would have power to renew this application, which would then be heard by the Divisional Court.^[63] This change in procedure would have taken into account the undesirability of adding to the already large caseload in the Court of Appeal (Criminal Division) ("CACD"), while ensuring that the applicant had effectively a "right" of appeal to a court whose members are at least as expert as those of the CACD (indeed the personnel might well be the same). Where an application is refused by the single judge, we thought that an applicant should have power to renew it before the Divisional Court. We also considered that appeals from the Divisional Court should lie with leave to the House of Lords, as they do at present. The applicant would then have had two attempts to persuade an increasingly senior court to order the issue of the writ.
11.31      In cases where the single judge ordered the issue of the writ, we considered the respondent should be allowed to apply to have the order for the issue of the writ set aside as is possible in Order 53 proceedings.^[64] Our scheme would have permitted the provision in the Administration of Justice Act 1960, section 15(4), that in criminal cases an order can be made for the continued detention of the applicant, to be retained.
11.32      Although we favour a unified appeal structure, we have, with some reluctance, come to the conclusion that, in the context of the present exercise, it is not possible to recommend the adoption of the scheme outlined above. First, the need to make provision for release on bail in criminal cases, meant that it was not possible to have a completely unified system of appeals without depriving some applicants in civil cases of their existing right to be discharged and to remain at large where the writ is granted. Secondly, one aim of the proposed reform was the simplification of the present law but during the drafting process we were advised that only a limited amount of simplification was possible in the absence of any wider review of the provisions of the Administration of Justice Act 1960. Thirdly, the present constitution of the Divisional Court was an important element in our scheme for appeals in habeas corpus cases but we understand that consideration may be given to possible changes in the constitution of that court. We therefore make no recommendation for reform but urge the wider review which will make it possible to create the unified system of habeas corpus appeal procedures we favour.

Note 1   De Smith Judicial Review of Administrative Action, (4th ed 1980), p 596.    [Back]

Note 2   R v Earl Ferrers (1758) 1 Burr 631.    [Back]

Note 3   “The great and efficacious writ in all manner of illegal confinement is that of habeas corpus ad subjiciendum”: 3 B1 Com (14th ed) 131.    [Back]

Note 4    “The judges owe a duty to safeguard the liberty of the subject not only to the subjects of the Crown, but also to all persons within the realm who are under the protection of the Crown and entitled to resort to the courts to secure any rights which they may have, whether they are alien fiends or alien enemies. [T]his fact ... makes the prerogative writ of the highest constitutional importance”, Halsbury’s Laws of England, 1(1) para 224.    [Back]

Note 5   X v United Kingdom (l981) 4 EHRR 188 para 19; SA de Smith, op cit p 600. See also PP Craig, Administrative Law (3rd ed) p 545; Wade and Forsyth, Administrative Law (7th ed), pp 622; Wade and Bradley, Constitutional Law, (11th ed), pp 728-729.    [Back]

Note 6   R Gordon, Crown Office Proceedings 1990 para D1-003; C Lewis, Judicial Remedies in Public Law (1992), p 332; Sharpe, The Law of Habeas Corpus (2nd ed), pp 21-22, 53; Wade and Forsyth, Administrative Law (7th ed), p 618.    [Back]

Note 7   R v Secretary of State for the Home Dept, ex p Khawaja [1984] AC 74, 111 B-C. See also Lord Wilberforce, ibid, at 105.    [Back]

Note 8   O 54, r 11.    [Back]

Note 9   Applications may be made to any judge of any Division of the High Court and as O 54, r 1 (b) provides, to any judge otherwise than in Court when no judge is sitting in Court. Applications on behalf of minors must be made in the first instance to a judge otherwise than in Court (O 54, r 1 (c)).    [Back]

Note 10   R v Home Secretary, ex p Cheblak [1991] 1 WLR 890, 894 (Lord Donaldson MR).    [Back]

Note 11   Although it is accepted that most judges would take an urgent application for judicial review immediately (M Shrimpton, "In Defence of Habeas Corpus", [1993] PL 24, 26).    [Back]

Note 12   O 54, r 4(2).     [Back]

Note 13   Consultation Paper No 126, paras 7.7 - 7.8.    [Back]

Note 14   The writ of habeas corpus is a writ of right but will not be granted as a matter of course, and may be refused where there is another effective remedy to question the restraint, eg an appeal against sentence or conviction, or a pending application to a tribunal: Re Wring [1960] 1 WLR 138.    [Back]

Note 15   A Le Sueur ("Should we abolish the Writ of Habeas Corpus?" [1992] PL 13) notes that law reformers, including the Hanworth Committee (Cmd 4265 1933), the Law Commission (Law Com 73 Cmnd 6407 1976), and the JUSTICE/All Souls Review (1988), have consistently excluded the writ from their agendas.    [Back]

Note 16   Re M [1994] 1 AC 377 (HL).    [Back]

Note 17   A Le Sueur, “Should We Abolish the Writ of Habeas Corpus?” [1992] PL 13.    [Back]

Note 18   See Sharpe, op cit p 80 for examples of the confused line of demarcation between jurisdictional and non-jurisdictional errors and R Gordon, Crown Office Proceedings 1990, D1-018 - D1-022 for examples of situations where the remedy which should be sought is unclear.    [Back]

Note 19   Cf A Le Sueur, op cit ([1992] PL 13, 19), who states that “Procedural reform of habeas corpus is necessary either because its scope is the same as the application for judicial review, or because it is unjustifiably different”.    [Back]

Note 20   In 1993 there were 55 applications for habeas corpus as compared with 42 applications (of which 11 were disposed of) in 1992.    [Back]

Note 21   See paras 11.10 - 1 1.20 below.    [Back]

Note 22   Eg R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74, 109, 122 (Lord Scarman and Lord Bridge respectively).    [Back]

Note 23   Interim relief is now available against ministers and government departments, see Part VI above. It was, however, stated by consultees that one crucial difference is that the writ of habeas corpus transfers the custody of the prisoner from the executive to the court (R v Secretary of State for the Home Department, ex p Muboyayi [1992] 1 QB 244, 258 per Lord Donaldson MR). This is especially important in immigration cases where the applicant’s advisers may need to prevent the removal of the applicant from the country: see further para 11.21 below.    [Back]

Note 24   Re Poh [1983] 1 WLR 2. See para 9.6 above.    [Back]

Note 25   The Law Commission Fifth Programme of Law Reform, Law Com No 200, (1990) Item 10.    [Back]

Note 26   Habeas Corpus Acts were passed in 1679, 1816 and 1862. See also Administration of Justice Act 1960, ss 14, 15; Courts Act 1971 Schedule 11, Pt IV.    [Back]

Note 27   [1984] AC 74, 99.    [Back]

Note 28   Sharpe, The Law of Habeas Corpus, (2nd ed 1989) p 53. See also Beldam LJ, dissenting, in R v Secretary of State for the Home Department, ex p Cheblak [1991] 1 WLR 890.    [Back]

Note 29   [1991] 1 WLR 890, 894 (emphasis added).    [Back]

Note 30   [1992] 1 QB 244.    [Back]

Note 31   [1992] 1 QB 244, 254 - 5. Lord Donaldson accepted “that where the power to detain is dependent upon the existence of a particular state of affairs (“a precedent fact“) and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of an application for a writ of habeas corpus under 0 54, even if there are alternative procedures available. If authority is required for this proposition, it is to be found in the decision of the House of Lords in R v Secretary of State for the Home Department, ex p Khawaja ... per Lord Wilberforce ... Lord Scarman ... Lord Bridge ... [and] Lord Templeman.”    [Back]

Note 32   [1968] AC 192. This case was also not considered in R v Secretary of State for the Home Department, ex p Phansopkar [1976] QB 606, which was relied on by Lord Donaldson in ex p Muboyayi.    [Back]

Note 33   R v Nat Bell Liquors Ltd [1922] 2 AC 128 (PC); Davies v Price [1958] 1 WLR 434 (HL) quoted in Sharpe, op cit p 79. Anisminic is discussed in para 11.17 below.    [Back]

Note 34    [1968] AC 192.    [Back]

Note 35   Ibid, at 230 - 235 (Lord Reid), 253 - 254 (Lord Pearce), 257 (Lord Upjohn).    [Back]

Note 36   [1962] 2 QB 1.    [Back]

Note 37   R Gordon, Crown Office Proceedings (1990) D 1-021.    [Back]

Note 38   [1969] 2 AC 147.    [Back]

Note 39   Pearlman v Keepers and Governors of Harrow School [1979] QB 56; Re Racal Communications Ltd [1981] AC 374; ChiefAdjudication Officer v Foster [1993] 2 WLR 292. Cf Bugg v DPP [1993] QB 473 and R v Hull University Visitor, ex p Page [1993] AC 682.    [Back]

Note 40   [1969] 2 AC 147.    [Back]

Note 41   For examples see para 11.15 above. See further PP Craig, Administrative Law (3rd ed), p 545 - 546; R Gordon, op cit at D1-019; Rubinstein, Jurisdiction and Illegality (1965), p 115; Sharpe, op cit pp 21 - 23; Wade and Forsyth, op cit 620-622.    [Back]

Note 42   Sharpe, The Law of Habeas Corpus (2nd ed 1989), p 53. He cites extradition cases as the best examples of this in operation, where the court freely ranges over the whole record of the proceedings before the magistrate and in no way confines itself to the warrant of commitment. See eg Armah v Government of Ghana [1968] AC 192. There may also be European Convention of Human Rights reasons for rejecting the narrow view of the scope of review in habeas corpus: X v United Kingdom (1981) 4 EHRR 188; Brogan v United Kingdom (1991) 13 EHRR 439.    [Back]

Note 43   [1992] 1 QB 244, 257.    [Back]

Note 44   See para 11.15 above.    [Back]

Note 45   In R v Halliday, ex p Zadig [1917] AC 260 even though (ibid, 267 per Lord Finlay LC) there was no challenge to the precedent facts a citizen retained the right to have the legality of the order or warrant by virtue of which he was incarcerated (in that case the legality of the regulations authorising the internment without mal of persons of hostile origin) determined in a Court by means of a writ of habeas corpus (ibid, 272, 308 per Lord Atkinson and Lord Wrenbury). The House of Lords (Lord Shaw dissenting) held that habeas corpus did not lie because the regulations were authorised by the Defence of the Realm Consolidation Act 1914.    [Back]

Note 46   The reform of habeas corpus procedure which is proposed at paras 11.28 - 11.3 1 below is within the programme item and is not affected by any doubts as to the scope of review in habeas corpus. For our programme item, see n 25 above.    [Back]

Note 47   See para 11.2 above. See also R v Miller [1985] 2 SCR 613, 630 - 633, a decision of the Supreme Court of Canada, which explicitly held that habeas corpus lies to determine the validity of a particular form of confinement notwithstanding that the same issue may be determined upon certiorari in the Federal Court.    [Back]

Note 48   Consultation Paper No 126, para 7.8.    [Back]

Note 49   [1988] QB 398.    [Back]

Note 50   Bail may be granted where the court is seized either of an application for leave to apply for judicial review or of a substantive application for judicial review: ibid, Sir John Donaldson MR at 40 1. If bail is refused then that decision is appealable to the Court of Appeal by virtue of s 16 of the Supreme Court Act 1981.    [Back]

Note 51   The Times, 31 October 1987.    [Back]

Note 52   Immigration Act 1971, Sch 2, para 22.    [Back]

Note 53   R v Governor of Haslar Prison, ex p Egbe, The Times, 4 June 1991.    [Back]

Note 54   R v Secretary of State for the Home Department, ex p Muboyayi [1992] 1 QB 244, 258 (per Lord Donaldson MR).    [Back]

Note 55   Administration of Justice Act 1960, s 15(1). This was, according to Sharpe (op cit p. 208), intended purely to allow the authorities to obtain a higher ruling on a point of law in cases of general public importance. It cannot affect the applicant’s right to liberty gained on the initial application (Administration of Justice Act 1960, s 15(4).    [Back]

Note 56   Administration of Justice (Appeals) Act 1934, s 1(1).    [Back]

Note 57   Supreme Court Act 1981, s 18(l)(a), and Administration of Justice Act 1960, s 15(2).    [Back]

Note 58   Administration of Justice Act 1960, s 14(1) and O 54, r 4(2).    [Back]

Note 59   Administration of Justice Act 1960, s 15(4).    [Back]

Note 60   Ibid, s 1. In the debate on the bill Lord Parker CJ commented in the House of Lords (Hansard 24 March 1960, Vol 222, col 269) that, “[t]he vast majority [of criminal appeals] are made by prisoners serving long terms of imprisonment, serving sentences imposed by a court of competent jurisdiction from which an appeal has led to the Court of Criminal Appeal and which has been refused. Those applications are misconceived.”    [Back]

Note 61   Administration of Justice Act 1960, s 15(1).    [Back]

Note 62   The judge need not be a nominated judge - ordinary Queen’s Bench Division judges frequently handle cases involving detention.    [Back]

Note 63   This would be modelled on O 53, r 3(4)(a), renewal of application for leave to apply for judicial review. It would necessitate reform of the Administration of Justice Act 1960.    [Back]

Note 64   See the White Book, paras 53/1-14/33, pp 859 - 860.    [Back]