Habeas Corpus Act 1816

The Habeas Corpus Act 1816 (c.100 56 Geo 3) was an Act of the Parliament of the United Kingdom that modified the law on habeas corpus to remove the rule against "controverting the return" in non-criminal cases.

Historically, the rules around factual inquiries in decisions around petitions for habeas corpus had been based on the Opinion on the Writ of Habeas Corpus, a House of Lords disquisition by Wilmot CJ in 1758, which effectively nullified a bill for passage of An Act for giving a more speedy Remedy to the Subject upon the Writ of Habeas Corpus.^[1] This opinion made the argument that the writ only allowed the judge to ask for an explanation of why the prisoner was jailed (known as the 'return'), not to debate whether that explanation was justified or to examine the facts of it ('controvert' it) - that was for a jury to do.^[2]

There were several ways around this. One was "confessing and avoiding" - introducing and discussing facts which did not contradict the facts reported by the jailer, but simply invalidated them.^[3] A second method was "proceeding by rule and motion" - by making a ruling independent of the return, the judges (strictly speaking) did not argue with the return or contradict it, but the same outcome was reached as if they had.^[4] The law in this area caused some concern, because of feelings that it restricted the ability of the courts to deal with arguments over facts from the applicant for the writ.^[5] A bill was introduced in 1758 to resolve this, but rejected; a second bill was introduced in 1816 and passed, coming into law as the Habeas Corpus Act 1816. The Act explicitly allows judges to question and debate the facts laid out in a return, although it deliberately does not extend to criminal cases due to a fear that it could lead to a full trial being conducted just on the petition and return. It does, however, seemingly apply to cases where the petitioner or subject has been arrested for a criminal matter but not charged.^[5]

Judith Farbey, a barrister and commentator on the law of habeas corpus, argues that the law is in fact pointless; almost anything that could be justified under the 1816 Act could also be justified by classifying the fact that the judge wants to discuss as a "jurisdictional fact", another way of permitting debate.^[6] Paul D. Halliday, a professor of history at the University of Virginia agreed, arguing that "all these usages had been available at common law, and there is reason to question the status this act has traditionally received".^[7] The end result, though, was that "the rule against controverting the return may safely be regarded as a harmless relic of the past".^[6] Outside of the United Kingdom, legislation in various British territories and dominions ensured that it was enshrined in much Commonwealth law, including that of Singapore,^[8] Australia and New Zealand.^[9] Outside those jurisdictions in which it had a directly binding effect, it was still influential - the Act was "soon duplicated in most American states".^[10]

References

Bibliography

• Clark, David J. (2000). Habeas Corpus: Australia, New Zealand, the South Pacific. Federation Press. ISBN 186287302X. 
• Farbey, Judith (2011). The Law of Habeas Corpus. Oxford University Press. ISBN 0199248249. 
• Halliday, Paul D. (2010). Habeas Corpus: From England to Empire. Harvard University Press. ISBN 0674049012. 
• Harding, Andrew (1993). Preventive Detention and Security Law: A Commparative Survey. Martinus Nijhoff Publishers. ISBN 0792324323. 
• Oaks, Dallin H. (1966). "Legal History in the High Court: Habeas Corpus". Michigan Law Review. University of Michigan Law School. 64 (3). ISSN 0026-2234. 
• Eardley-Wilmot, John (1802). Wilmot Notes of Opinions and Judgements Delivered in Different Courts [1757-1770] Check |url= value (help). Luke Hansard.