Murdoch's Term of the Week: Habeas Corpus

Often wrongly attributed to the Magna Carta, the medieval concept of habeas corpus and the explicit recognition of citizens bodily autonomy it imported was brought into law by Henry II through the Assize of Clarendon 1166. This week's TOTW digs deeper.


Habeas Corpus:

[That you have the body]. An order of the High Court to compel a person in whose custody another person is detained to produce the body of that other person before the court and to certify in writing the grounds of his detention; the court having given the person in whose custody he is detained an opportunity of justifying the detention, will order the release of the person from detention unless satisfied that he is being detained in accordance with law: 1937 Constitution, art.40(4)(2).

It is open to any person, citizen or non-citizen, to make an application for habeas corpus: The State (Kugan) v O’Rourke [1985] IR 658. However, The habeas corpus procedure cannot be used as a fast-track procedure where the appropriate remedies are by way of judicial review or plenary proceedings: Bolger v Commissioner of Garda Síochána [2000 HC & SC] 1 ILRM 136.

Applications which clearly raise an issue as to the legality of the detention of a person must be treated as applications under art.40 no matter how they are described eg as judicial review or otherwise: Sheehan v District Judge O’Reilly [1993 SC] ILRM 427. The Supreme Court has confirmed that it has no power to put a stay on an order for release made by the High Court: The State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550. See also McSorley v Governor of Mountjoy Prison [1996 HC] 2 ILRM 331; [1997 SC] 2 ILRM 315.

An inquiry under Article 40.4.2 in relation to a person detained under the provisions of the Mental Treatment Acts includes a substantive inquiry into whether their mental health justifies their detention and may well be more extensive than a normal inquiry under Article 40.4.2: LK v Clinical Director, Lakeview Unit [2006] IEHC 196; [2007 HC] 2 ILRM 69. The transfer of an involuntary patient from a psychiatric ward to a medical ward for the purpose of treating his physical ailments did not render his detention unlawful as it was necessary in the interests of the patient: PMcG v Mater Hospital [2007] IEHC 401; [2008 HC] 2 IR 332.

The Supreme Court has held that except in very exceptional circumstances, it was not open to a convicted person to challenge the legality of their detention pursuant to Art.40.4.2 of the Constitution where their case and appeal had been determined to a point of statutory finality: Brennan v Governor of Portlaoise Prison [2007] IEHC 384; [2008] IESC 12; [2008 SC] 3 IR 364.

In a habeas corpus application, the onus of proof lay on the State to prove that the applicant was detained in accordance with law; the onus did not extend to proving the constitutionality of the laws under which an applicant was detained as those laws enjoyed the presumption of constitutionality: O’Sullivan v Irish Prison Service [2010] IEHC 301; [2010 HC] 4 IR 562.

It has been held that the requirement on the State under Art.40.4 is to show that the person is detained 'in accordance with law'; it is not necessary for the State to prove the constitutionality of the laws under which an applicant is detained: O'Sullivan v Irish Prison Service [2010] IEHC 301; [2011 HC] 1 ILRM 350. See Joyce v Governor of the Dóchas Centre [2012] IEHC 326; [2012 HC] 2 IR 666; [2013 HC] 2 ILRM 366.

See Habeas Corpus Act 1781 as amended by Criminal Law Act 1997 s.16 and third schedule. See RSC O.84 rr.2-13. [Bibliography: Collins & O’Reilly (1)]. See ATTORNEY GENERAL’S SCHEME; BAIL; DETENTION.


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