The Habeas Corpus Act 1862 (25 & 26 Vict. c.20) is an Act of the

Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...

that limited the right of the English courts to issue writs of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

'' in British colonies or dominions. The act was passed in response to '' Ex parte Anderson'', a case in the Canadian courts in which the English

Court of King's Bench The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions. * Court of King's Bench (England), a historic court court of common ...

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 Act was passed, receiving

royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...

on 16 May 1862. The statute consists of only two clauses: * s. 1 declares 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 The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the ...

) if that nation has a court able to issue such a writ. * s. 2 states 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 Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...

. The Act was notably used in ''

R v Secretary of State for Home Affairs, ex p O'Brien ''R v Secretary of State for Home Affairs ex parte O'Brien'' 9232 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. In Mar ...

'' 9232 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 A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...

because the 1862 Act meant that the court had no jurisdiction to order the release of the citizens. In 1971

Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 wh ...

led the Court of Appeal in ''

Re Keenan Re or RE may refer to: Geography * Re, Norway, a former municipality in Vestfold county, Norway * Re, Vestland, a village in Gloppen municipality, Vestland county, Norway * Re, Piedmont, an Italian municipality * Île de Ré, an island off the we ...

971 Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men) ...

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 William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland, before moving to Lond ...

construing the

Repeal of Act for Securing Dependence of Ireland Act 1782 The Repeal Act of 1782 (22. Geo. III, c. 53) was an Act of the Parliament of Great Britain, which repealed the Declaratory Act of 1719. The 1719 Act had declared the Parliament of Ireland dependent on the Parliament and Privy Council of Great B ...

and the

Irish Appeals Act 1783 The Irish Appeals Act 1783 (23 Geo 3 c 28), commonly known as the Renunciation Act, was an Act of the Parliament of Great Britain. By it the British Parliament renounced all right to legislate for Ireland, and declared that no appeal from the de ...

,both Acts subsequently repealed by the Statute Law Revision Act 1871 in declining the opportunity to issue a writ in Northern Ireland.

References

Bibliography

* * * *{{cite journal, last=Yale, first=D. E. C., year=1972, title=Habeas Corpus. Ireland. Jurisdiction, journal= Cambridge Law Journal , publisher=

Cambridge University Press Cambridge University Press is the university press of the University of Cambridge. Granted letters patent by King Henry VIII in 1534, it is the oldest university press in the world. It is also the King's Printer. Cambridge University Pre ...

, volume=30, issue=1, pages=4{{endash7, doi=10.1017/S0008197300008503 1862 in British law United Kingdom Acts of Parliament 1862 Constitution of Canada Habeas corpus