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 of Great Britain and Northern Ireland is the supreme legislative body of the United Kingdom, and may also legislate for the Crown Dependencies and the British Overseas Territories. It meets at the Palace ...

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

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...

'' 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 Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the '' curia regis'', the King's Bench initi ...

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 othe ...

on 16 May 1862. The statute consists of only two clauses: * Section 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, often referred to as the British Commonwealth or simply the Commonwealth, is an International organization, international association of member states of the Commonwealth of Nations, 56 member states, the vast majo ...

) if that nation has a court able to issue such a writ. * Section 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 August ...

. The act was notably used in '' R v Secretary of State for Home Affairs, ex p O'Brien''

923 __NOTOC__ Year 923 ( CMXXIII) was a common year starting on Wednesday of the Julian calendar. Events By place Europe * June 15 – Battle of Soissons: King Robert I is killed; the Frankish army, led by Charles the Simple, is d ...

2 KB 361, in which

Sir Patrick Hastings Sir Patrick Gardiner Hastings (17 March 1880 – 26 February 1952) was an English 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 ...

' 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 Alfred Thompson Denning, Baron Denning, (23 January 1899 – 5 March 1999), was an English barrister 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 when he w ...

led the

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

in '' Re Keenan''

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

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, (2 March 1705 – 20 March 1793), was a British judge, politician, lawyer, and peer best known for his reforms to English law. Born in Scone Palace, Perthshire, to a family of Peerage of Scotland, Scott ...

construing the

Repeal of Act for Securing Dependence of Ireland Act 1782 The Repeal Act 1782 ( 22 Geo. 3. c. 53) was an Act of the Parliament of Great Britain, which repealed the Declaratory Act 1719. The 1719 act had declared the Parliament of Ireland dependent on the Parliament and Privy Council of Great Britain; ...

( 22 Geo. 3. c. 53) 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 th ...

( 23 Geo. 3. c. 28)both acts subsequently repealed by the

Statute Law Revision Act 1871 A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

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 ''The Cambridge Law Journal'' is a peer-reviewed academic law journal, and the principal academic publication of the Faculty of Law, University of Cambridge. It is published by Cambridge University Press, and is the longest established university ...

, publisher=

Cambridge University Press Cambridge University Press was the university press of the University of Cambridge. Granted a letters patent by King Henry VIII in 1534, it was the oldest university press in the world. Cambridge University Press merged with Cambridge Assessme ...

, 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