The Law of Habeas Corpus

Hardcover | March 24, 2011

byA. D. R. Zellick, R. J. Sharpe

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Habeas corpus is the principal means under the common law for the protection of personal liberty. By this ancient writ, the court assumes control over the body of a prisoner so it can discharge him or her to freedom if no proper legal cause can be shown for detention. Habeas corpus securesrelease from any form of custody, whether decreed by the highest powers of the state or the lowest gangland slave-trader. Its reach is as diverse as the forms of confinement. For just two examples beyond the prison wall, a patient wrongly detained for compulsory medical treatment can invoke itsprotection and it can even be deployed to determine the proper parental custody of a child. This volume looks first at the historical development of the writ, tracing its growth in significance until its emergence as an item of central constitutional importance. Having established the traditional place of habeas corpus, the volume goes on to examine the limits of the remedy today. Itdescribes the modern workings of the application for habeas corpus and assesses the scope, function, and role of the procedure. It explores the relationship between habeas corpus and fundamental rights. The volume critically surveys the nature of judicial review on habeas corpus and investigatespast, present, and potential future uses of the writ. It aims to provide a comprehensive statement of current English law, with added discussion of the position in other Commonwealth countries. The volume concludes with a guide to procedure and sample forms.

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Habeas corpus is the principal means under the common law for the protection of personal liberty. By this ancient writ, the court assumes control over the body of a prisoner so it can discharge him or her to freedom if no proper legal cause can be shown for detention. Habeas corpus securesrelease from any form of custody, whether dec...

A. D. R. Zellick is a Barrister of Fountain Court Chambers. The Hon. Mr Justice R. J. Sharpe is a Judge of the Ontario Court of Appeal.
Format:HardcoverDimensions:350 pagesPublished:March 24, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199248249

ISBN - 13:9780199248247

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Customer Reviews of The Law of Habeas Corpus

Reviews

Rated 5 out of 5 by from Habeas corpus... THE EVOLUTION AND VULNERABILITY OF A FUNDAMENTAL RIGHT An appreciation from Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers The cornerstone of our liberties, habeas corpus is actually an ancient writ, the origins of which are described in this excellent book aimed at those either new or experienced in these matters. As a legacy of the Middle Ages, habeas corpus became more firmly entrenched four centuries ago as a means of protecting the individual against unfair imprisonment, confinement or detention. Worryingly, it’s taken something of a battering fairly recently in the controversies surrounding the war on terrorism; for example, detention without trial and the imprisonment of detainees at Guantanamo. So this book is timely, dealing with these topical issues, but not before offering up a thorough and useful examination of -- as promised by the title -- the law of habeas corpus itself. First, there is an introduction to the history of habeas corpus, tracing its development primarily from its seventeenth century origins. It was in 16th and 17th centuries that the writ of habeas corpus took is modern form gaining its conspicuous place as a fundamental ingredient of the UK’s Constitution. The significance of habeas corpus in the modern context is that it empowers the court to secure the release of individuals from unlawful custody over a range of circumstance, from detention in prison to the custody of a child, to patients detained for compulsory medical treatment and, as in a number of current high profile cases, individuals wrongly held in detention as the result of the war on terrorism. So fundamental a liberty is habeas corpus that all too many take it for granted, which offers all the more reason why it should be jealously guarded by those charged with ensuring its preservation. Interestingly, this important book started life as the thesis for the D. Phil. at Oxford University by one of the three learned authors, The Hon. Mr Justice R.J. Sharpe, now of the Ontario Court of Appeal. With subsequent revisions and updates, the book has remained topical and is now published by OUP in this latest third edition. The authors have endeavoured to maintain the structure and organization of previous editions while examining all recent developments including, for example, judicial review, immigration cases and the implications of the Human Rights Act 1998, especially when conflicts of interest have emerged between liberty and security. We were amused to read a quote in “The Times” letters column some time ago from a Mr Benjamin Franklin who remarked in effect that those who would sacrifice freedom for safety deserve neither freedom nor safety. Anyone who is concerned, especially in a professional capacity, with the issues raised by this 250 page book should read it. Meticulously footnoted throughout with extensive tables of cases, national legislation, secondary legislation, as well as treaties and conventions (on both sides of the Atlantic) plus a great index, it points the way to literally hundreds of avenues for further research on the evolution and vulnerability of this fundamental right.
Date published: 2011-04-30

Extra Content

Table of Contents

Part I: The General Part1. Historical Aspects2. Habeas corpus: a procedure, remedy, and right3. Detention - a Precondition?Part II: The Grounds for Review4. Habeas corpus and Fundamental Rights5. Grounds for Review6. Jurisdictional Review and Error of Law7. Factual Review8. The ExecutivePart III: Two Areas of Differing Application9. Criminal Law10. Compulsory TreatmentPart IV: Further Considerations of Effectiveness11. Territorial Ambit12. AppealsPart V: Aspects of Practice13. Aspects of Practice

Editorial Reviews

`'Dr Sharpe's scholarly monograph fills an important gap in the modern literature of English public law.''The Law Quarterly Review