Habeas Corpus Act 1862
Encyclopedia
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. 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. While the court issued the writ, it felt that setting such a precedent would interfere with the "higher degree of Colonial independence". 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. 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
. 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.
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. 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.
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that limited the right of the English courts to issue writs of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
in British colonies or dominions. The act was passed in response to Ex Parte Anderson
Extradition case of John Anderson
The Anderson case took place in Canada West from 1860-1861. The case dealt with whether or not to extradite an escaped slave to the United States on the charge of murder. The majority of the presiding judges who handled the case agreed that there was sufficient evidence to prove criminality of...
[1861] 3 EL, a case in the Canadian courts in which the English Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
attempted to issue a writ of habeas corpus and have Anderson appear before an English judge. While the court issued the writ, it felt that setting such a precedent would interfere with the "higher degree of Colonial independence". As a result the Habeas Corpus Act 1862 was passed, receiving the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
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
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
) if that nation has a court able to issue such a writ. 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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
. The Act was notably used in R v Secretary of State for Home Affairs ex parte O'Brien
R v Secretary of State for Home Affairs ex parte O'Brien
R v Secretary of State for Home Affairs ex parte O'Brien [1923] 2 KB 361 was a 1923 test case in English law that sought to have the internment and deportation of Irish nationalist sympathisers earlier that year declared legally invalid...
[1923] 2 KB 361, in which Sir Patrick Hastings
Patrick Hastings
Sir Patrick Gardiner Hastings KC was a British barrister and politician noted for his long and highly successful career as a barrister and his short stint as Attorney General. He was educated at Charterhouse School until 1896, when his family moved to continental Europe...
' challenge to the deportation and internment of British citizens to the Irish Free State was rebuffed by the Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
because the 1862 Act meant that the Court had no jurisdiction to order the release of the citizens.
In 1971 Lord Denning led the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
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. 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.