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Executive Summary

Habeas corpus ad subjiciendum is an ancient and fundamental principle of English constitutional law. It originated through the common law and has been confirmed and regulated by a number of statutes that date back to the Magna Carta. Habeas corpus is still available in the United Kingdom today. Its importance and use, however, has diminished considerably due to extensive statutory protections that exist to protect a person’s liberty.

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Background

The ultimate purpose of a writ of habeas corpus is to provide a remedy in cases of illegal restraint or confinement by testing the legality of a person’s detainment.[1]  A petition for issuance of the writ can be filed by the imprisoned person or by other individuals acting on his or her behalf.[2]  If the court cannot find any legal justification for the person’s detention, an immediate release is ordered.[3]  It remains in effect today, with legal treatises noting that habeas corpus has most often been used in immigration cases to test the legality of the detention of immigrants,[4] extradition proceedings, and to challenge detention under mental health legislation.[5]  One of these treatises notes that:

despite its status, the writ’s practical importance has diminished as more flexible methods of protecting liberty have been established either by specialized statutory procedures or more generally by way of judicial review.  This has led to calls either for its abolition or its merger with judicial review.[6]

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Use of Habeas Corpus by Individuals Subject to ‘Preventive’ Anti-Terrorism Laws

The United Kingdom (UK) has faced the issue of how to lawfully detain an individual that they suspect is a terrorist but cannot prosecute for varying reasons through a system of “control orders.”  These orders, issued under the Prevention of Terrorism Act 2005,[7] do not serve to detain individuals per se, but rather impose obligations upon them that are designed to disrupt and prevent terrorist activity.  Such obligations include restrictions on association with specified individuals, restrictions on movement, and curfews.

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Access to Courts Similar to Habeas Corpus

Judicial review provides access to the courts that is considered to be similar to habeas corpus, to the extent that it has been considered on many occasions that habeas corpus should be merged with judicial review.[8]  Individuals that are subject to control orders may apply to the courts for a review of their order if they have applied to the Secretary of State to have the order revoked or modified and the application has been denied, or in cases where the Secretary of State has renewed the order.  In the case of an appeal against the renewal of, or a decision to not revoke an order, the court must consider whether the decision of the Secretary of State was flawed in determining that:

  • The continuation of the order is necessary to protect members of the public from a risk of terrorism; and/or
  • The obligations in the order are necessary to prevent or restrict a person’s involvement in terrorism-related activity.[9

In the case of an appeal against a modification of an obligation imposed by the order, whether on renewal or otherwise, the court must consider whether the decision of the Secretary of State was flawed in determining that: the modification is “necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.”[10]  In the case of an appeal against a decision by the Secretary of State to not modify an obligation, the court must consider whether the decision of the Secretary of State was flawed in determining that the obligation remains necessary for the purpose of preventing or restricting involvement of the individual in terrorism-related activity.  The courts’ only powers in this case, as in the preliminary hearings and full hearings, are to either quash the order or one or more of the obligations imposed by the order, direct the Secretary of State to revoke or modify the obligations of the order, or dismiss the appeal.

During the debates on the Prevention of Terrorism Act 2005, the government was accused of attempting to pass laws that would curtail terrorists’ rights to habeas corpus. The government has said that the law does not prevent any individual detained from seeking habeas corpus, although that the use of this legal tool is now infrequent due to the statutory protections in many acts and restrictions on the duration of detainment.

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Prepared by Clare Feikert
Senior Foreign Law Specialist
May 2007

Updated by Clare Feikert
Senior Foreign Law Specialist
March 2009

  1. IV ENCYCLOPEDIA OF THE LAWS OF ENGLAND, WITH FORMS AND PRECEDENTS 469 (A. Wood Renton et al. eds., 2nd ed. 1907). Habeas corpus is also provided for in the following statutes: Habeas Corpus Act 1679, 31 Ch. 2, c. 2; H.C. Act 1803, 43 Geo 3, c. 140; H.C. Act 1804, 44 Geo. 3, c. 102; H.C. Act 1816, 56 Geo. 3, c. 100; and the H.C. Act 1862, 25 & 26 Vict. c. 20. [Back to Text]
  2. HILAIRE BARNETT, CONSTITUTIONAL AND ADMINISTRATIVE LAW 741 (4th ed. 2002). [Back to Text]
  3. Id.; IV ENCYCLOPEDIA OF THE LAWS OF ENGLAND, supra note 1, at 469. [Back to Text]
  4. BARNETT, supra note 2, at 742. [Back to Text]
  5. ENGLISH PUBLIC LAW ¶ 18.75 (David Feldman ed., 2004). In 2000-2001 the courts dealt with sixty-nine applications for habeas corpus, with fifty-two of these applications relating to immigration and asylum cases. In the Lord Chancellor’s Department Consultation Paper, The Administrative Court: Proposed changes to primary legislation following Sir Jeffery Bowman’s Review of the Crown Office List (July 2001), available at http://www.dca.gov.uk/consult/bowmanrev/bowman.htm (external link) (last visited Jan. 14, 2009), the notion of merging judicial review and habeas corpus was rejected. [Back to Text]
  6. ENGLISH PUBLIC LAW, supra note 5, ¶ 18.75. See also The Lord Chancellor’s Department Consultation Paper, supra note 5. [Back to Text]
  7. Prevention of Terrorism Act 2005, c. 2. [Back to Text]
  8. See, e.g., The Lord Chancellor’s Department Consultation Paper, supra note 5. [Back to Text]
  9. Prevention of Terrorism Act 2005, c. 2. [Back to Text]
  10. Id. [Back to Text]

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Last Updated: 09/16/2014