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Habeas Corpus Act, 1862
UK Government Coat of Arms
Parliament of the United Kingdom
Long title: An Act respecting the Issue of Writs of Habeas Corpus out of England into Her Majesty’s Possessions abroad.
Statute book chapter: 20 & 26 Vict. c.20
Territorial extent: United Kingdom
Dates
Date of Royal Assent: 16 May 1862
Commencement: 16 May 1862
Status: Unknown
Text of statute as originally enacted
Official text of the statute as amended and in force today within the United Kingdom, from the UK Statute Law Database

The Habeas Corpus Act 1862 (20 & 26 Vict. c.20) was an Act of the Parliament of the United Kingdom that limited the right of the English courts to issue writs of habeas corpus in British colonies or dominions.[1] The act was passed in response to Ex Parte Anderson [1861] 3 EL, a case in the Canadian courts in which the English Court of King's Bench attempted to issue a writ of habeas corpus and have Anderson appear before an English judge.[2] While the court issued the writ, it felt that setting such a precedent would interfere with the "higher degree of Colonial independence".[2] As a result the Habeas Corpus Act 1862 was passed, receiving the Royal Assent on 16 May 1862.

The statute consists of only two clauses - the first is simply that no writ of habeas corpus can be issued by an English judge to any foreign nation or colony which forms part of the Queen's possessions (broadly speaking, the Commonwealth of Nations) if that nation has a court able to issue such a writ.[3] The second clause is that the act does not affect the rights of citizens of those nations to appeal cases to the Judicial Committee of the Privy Council.[4] The Act was notably used in R v Secretary of State for Home Affairs ex parte O'Brien [1923] 2 KB 361, in which Sir Patrick Hastings' challenge to the deportation and internment of British citizens to the Irish Free State was rebuffed by the Divisional Court because the 1862 Act meant that the Court had no jurisdiction to order the release of the citizens.[5]

In 1971 Lord Denning led the Court of Appeal in Re Keenan [1971] 3 WLR 844 in saying that no English court has jurisdiction to issue a writ of habeas corpus anywhere in Ireland, whether in Northern Ireland or the Republic of Ireland.[6] He based this judgment partially on the 1862 Act, and partially on a judgment of Lord Mansfield in declining the opportunity to issue a writ in Northern Ireland.[7]

References

  1. ^ Osborn (2008) p.124
  2. ^ a b Lauterpacht (1989) p.27
  3. ^ Habeas Corpus Act 1862 s.1
  4. ^ Habeas Corpus Act 1862 s.2
  5. ^ Hyde (196) p.127
  6. ^ Yale (1972) p.4
  7. ^ Yale (1972) p.5

Bibliography

Primary sources

Secondary sources

  • Lauterpacht, Elihu (1989). International Law Reports. Cambridge University Press. ISBN 0949009385.  
  • Osborn, P. G. (2008). A Concise Law Dictionary - For Students and Practitioners. Read Books. ISBN 1443729485.  
  • Hyde, H Montgomery (1960). Sir Patrick Hastings, his life and cases. London: Heinemann. OCLC 498180.  
  • Yale, D. E. C. (1972). "Habeas Corpus. Ireland. Jurisdiction". Cambridge Law Journal (Cambridge University Press) 30 (1).  
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