Smile of the Day Thursday May 26, 2021

Thursday May 26, 2021 Smile of the Day: Habeas Corpus and the Magna Carta

On this Day:

In 1679, the Habeas Corpus Act (strengthening a person’s right to challenge unlawful arrest & imprisonment) passed in England.

Habeas corpus; Medieval Latin meaning “[we, a Court, command] that you have the body [of the detainee brought before us]”) 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, to bring the prisoner to court, to determine whether the detention is lawful.

The writ of habeas corpus is known as the “great and efficacious writ in all manner of illegal confinement”. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad (“protection of freedom”).

Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of a war or state of emergency, for example by Abraham Lincoln during the American Civil War.

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.

The writ of habeas corpus is one of what are called the “extraordinary”, “common law”, or “prerogative writs”, which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove their authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

Habeas corpus originally stems from the Assize of Clarendon, a re-issuance of rights during the reign of Henry II of England in the 12th century. The foundations for habeas corpus are “wrongly thought” to have originated in Magna Carta. This charter declared that:

No Freeman shall be taken or imprisoned, or be disseized 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 judgment of his Peers, or by the Law of the land.

However the preceding article of Magna Carta, nr 38, declares:

No legal officer shall start proceedings against anyone [not just freemen, this was even then a universal human right] on his own mere say-so, without reliable witnesses having been brought for the purpose.

In the original Latin:

Nullus balivus ponat aliquem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis.

Pursuant to that language, a person may not be subjected to any legal proceeding, such as arrest and imprisonment, without sufficient evidence having already been collected to show that there is a prima facie case to answer. This evidence must be collected beforehand, because it must be available to be exhibited in a public hearing within hours, or at the most days, after arrest, not months or longer as may happen in other jurisdictions that apply Napoleonic-inquisitorial criminal laws where evidence is commonly sought after a suspect’s incarceration. Any charge levelled at the hearing thus must be based on evidence already collected, and an arrest and incarceration order is not lawful if not supported by sufficient evidence.

In contrast with the common law approach, consider the case of Luciano Ferrari-Bravo v. Italy the European Court of Human Rights ruled that “detention is intended to facilitate … the preliminary investigation”. Ferrari-Bravo sought relief after nearly five years of preventive detention, and his application was rejected. The European Court of Human Rights deemed the five year detention to be “reasonable” under Article 6 of the European Convention on Human Rights, which provides that a prisoner has a right to a public hearing before an impartial tribunal within a “reasonable” time after arrest. After his eventual trial, the evidence against Ferrari-Bravo was deemed insufficient and he was found not guilty.

England:

William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying “[t]he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.” 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 previous law (the Habeas Corpus Act 1640) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus. The cornerstone purpose of the writ of habeas corpus was to limit the King’s Chancery’s ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of equity, a process managed by the Chancellor (a bishop) with the King’s authority.

The 1679 codification of habeas corpus took place in the context of a sharp confrontation between King Charles II and the Parliament, which was dominated by the then sharply oppositional, nascent Whig Party. The Whig leaders had good reasons to fear the King moving against them through the courts (as indeed happened in 1681) and regarded habeas corpus as safeguarding their own persons. The short-lived Parliament which made this enactment came to be known as the Habeas Corpus Parliament – being dissolved by the King immediately afterwards.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. 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 the black slave, Somersett, was ordered to be freed. During that case, these famous words are said to have been uttered: “… that the air of England was too pure for slavery.” (although it was the lawyers in argument who expressly used this phrase – referenced from a much earlier argument heard in The Star Chamber – and not Lord Mansfield himself). During the Seven Years’ War and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service. The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation.

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner’s detention, so long as the detention is in accordance with an Act of Parliament, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.

The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review. The writ, however, maintains its vigour, and was held by the UK Supreme Court to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the writ justifying the detention of the claimant.

Canada

Habeas corpus rights are part of the British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in section 10(c) of the Charter of Rights and Freedoms, which states that “[e]veryone has the right on arrest or detention … to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”. The test for habeas corpus in Canada was recently laid down by the Supreme Court of Canada in Mission Institution v Khela, as follows:

To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant [i.e., the person seeking habeas corpus review] must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities [i.e., the person or institution detaining the applicant] to show that the deprivation of liberty was lawful.

Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau, who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and the internment of German-Canadians, Italian-Canadians and Japanese-Canadians during the Second World War. The writ was suspended for several years following the Battle of Fort Erie (1866) during the Fenian Rising, though the suspension was only ever applied to suspects in the Thomas D’Arcy McGee assassination.

The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy (see May v Ferndale Institution). Under the Criminal Code the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised (per Wikipedia).

First, a Story:

What can do you do if a math puzzle just won’t let your mind go?  Sue-doku.

Second, a Song:

Horrible Histories is an educational entertainment franchise encompassing many media including books, magazines, audio books, stage shows, TV shows, and more.

Horrible Histories began as a book series by author Terry Deary. The series began in 1993 with The Terrible Tudors and The Awful Egyptians, and the following titles continued the trend to describe British history through the context of the ruling dynasties, as well as explore significant worldwide cultures (often within the context of British history such as the Viking and Roman conquests on the British Isles). A series of specials and novelty books have been released, and the last book was announced to be released in 2013.

A live-action series, styled as a sketch show, began airing on CBBC in 2009. It won many awards over its 5 series run, including some British Comedy Awards – the first children’s show to do so.

A rebooted version of the 2009 sketch show aired in 2015, retaining some members of the original cast in guest roles but with each episode focusing on a particular historical figure. Actors in Series 6 included Ben Miller, Rowan Atkinson, Kathryn Drysdale, Kevin Eldon, Simon Farnaby, Sarah Hadland, Lorna Watson, Jim Howick and Jessica Ransom. This series was directed by Simon Gibney and Ian Curtis. This series won an International Emmy Kids Award in Cannes in April 2017 for the episode ‘Crooked King John and Magna Carta’. Jessica Ransom also won a Children’s BAFTA for her performance as Mary Queen of Scots. It is currently in its 3rd season, or 8th if you count it as a continuation of the 2009 series.

“I’m Gonna Be (500 Miles)” is a song written and performed by Scottish duo The Proclaimers, and first released as the lead single from their 1988 album Sunshine on Leith. The song reached number 11 in the UK Singles Chart on its initial release and has since become their most popular song worldwide. It was a number 1 hit in Iceland, then number 1 in Australia and New Zealand in early 1990.

In 1993, following its appearance in the American film Benny & Joon, the song was released in North America and many other countries around the world. It reached number 3 on the Billboard Hot 100 in the United States in August 1993, as well as number 8 on the Billboard Modern Rock chart and number 25 on the Billboard Adult Contemporary chart; it also reached number 4 in Canada. In 2007, the Proclaimers re-recorded the song with English comedians Peter Kay and Matt Lucas for the UK’s Comic Relief charity telethon, scoring a number one hit in the UK and outperforming their original UK chart run.

“I’m Gonna Be (500 Miles)” has become a live staple at the Proclaimers’ concerts. The duo played it at Edinburgh 50,000 – The Final Push at Murrayfield Stadium on 6 July 2005, the final concert of Live 8, to symbolise the conclusion of “The Long Walk to Justice” (per Wikipedia).

Here is Horrible Histories song “Magna Carta 800 Years” from CBBC set to “I’m Gonna Be (500 Miles). I hope you enjoy this!

(https://www.youtube.com/watch?v=XTWQzF1027I)

Thought for the Day:

“You can only protect your liberties in this world by protecting the other man’s freedom.” – Clarence Darrow

Cheers!

Have a great day!

Dave & Colleen

© 2021 David J. Bilinsky and Colleen E. Bilinsky