The Habeas Corpus Project was founded in July 2014 inspired by the ideals of the Magna Carta 1215 and the principle of Habeas Corpus.
What does ‘Habeas Corpus’ mean?
The literal translation of the phrase from the Latin is “you may have the body’.
A writ (court order) of habeas corpus commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner’s release.
This has historically been an important instrument safeguarding the Rule of Law and the freedom of the individual against arbitrary actions of the executive government.
History of Habeas Corpus
The Magna Carta was sealed under oath by King John on the bank of the River Thames near Windsor, England, on 15 June 1215. It was the first document imposed upon a King of England by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their rights. The Magna Carta declared:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgement of his Peers, or by the Law of the Land
Whilst the concept of Habeas Corpus is not a direct product of the Magna Carta in 1215, Sir William Holdsworth, a professor of Enlish law, wrote that “without the inspiration of a general principle with all the prestige of Magna Carta behind it, the development of Habeas Corpus could never have taken place; and equally, without the translation of that principle into practice, by the invention of specific writs to deal with cases of infringement, it could never have taken practical shape”.
Sir William Blackstone, an 18th century English jurist, cites the first recorded usage of habeas corpus as a substantive remedy against unlawful detention in 1305, during the reign of King Edward I.
In Bushell’s Case, decided in 1670, Chief Justice Vaughan stated “The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against the law deprived of it”
The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett’s Case (1772), where a black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered “The air of England has long been too pure for a slave, and every man is free who breathes it”.
While the procedure for habeas corpus remains codified in Rules of the Supreme Court Order 54, modern practice is for an application for Judicial Review to be made in the High Court of Justice with both parties present at court. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court with a declaration that his/her detention was unlawful.
In 2010 Lord Binghham, Senior Law Lord, wrote that “The simplicity of the writ is its strength and its virtue. It has been widely recognised as the most effective remedy against exective unlawfulness that the world has ever seen”.