The law of habeas corpus / Judith Farbey and R. J. Sharpe ; with Simon Atrill.
2011
KD7612 .S45 2011 (Map It)
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Author
Title
The law of habeas corpus / Judith Farbey and R. J. Sharpe ; with Simon Atrill.
Published
Oxford [England] ; New York : Oxford University Press, 2011.
Call Number
KD7612 .S45 2011
Edition
Third edition.
ISBN
9780199248247 (cloth : alk. paper)
0199248249 (cloth : alk. paper)
0199248249 (cloth : alk. paper)
Description
l, 255 pages ; 24 cm
System Control No.
(OCoLC)708578757
Summary
Habeas corpus is everyone's 'get out of jail free' card. It is the legal remedy ensuring a person's release from prison or any other form of custody when the detention cannot be justified in law. This volume provides in-depth and critical analysis of the law behind this vital protection of liberty.
Covers a topic of great importance: the liberty of the individual is a fundamental right and essential to the rule of law Habeas corpus is the only remedy directly applicable to a human right Provides a complete and up-to-date statement of the law Thoroughly explores the background and principles, together with practice and procedure, with sample forms, fully set out for the practitioner Completely updated to reflect significant developments in the case law and the literature since the last edition in 1989 One new chapter devotes special attention to habeas corpus and fundamental rights, looking in particular at the Human Rights Act 1998, the European Convention on Human Rights and also the Canadian Charter of Rights and Freedoms Another new chapter examines first principles and the evolution of judicial review and its relationship to habeas corpus For the first time, the book will include sample forms for practitioners in an extended section on practice and procedure.
Covers a topic of great importance: the liberty of the individual is a fundamental right and essential to the rule of law Habeas corpus is the only remedy directly applicable to a human right Provides a complete and up-to-date statement of the law Thoroughly explores the background and principles, together with practice and procedure, with sample forms, fully set out for the practitioner Completely updated to reflect significant developments in the case law and the literature since the last edition in 1989 One new chapter devotes special attention to habeas corpus and fundamental rights, looking in particular at the Human Rights Act 1998, the European Convention on Human Rights and also the Canadian Charter of Rights and Freedoms Another new chapter examines first principles and the evolution of judicial review and its relationship to habeas corpus For the first time, the book will include sample forms for practitioners in an extended section on practice and procedure.
Note
Previous editions by R. J. Sharpe.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Soll Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of Contents
Table of Cases
xv
Table of National Legislation
xlvii
Table of Secondary Legislation
li
Table of Treaties and Conventions
liii
1.
Historical Aspects of Habeas Corpus
1
1.
Introduction
1
2.
Medieval Period
2
3.
Habeas Corpus and the Jurisdictional Conflicts
4
4.
Habeas Corpus and Executive Committals
6
5.
Procedural Defects and the Habeas Corpus Act 1679
14
2.
Scope of Review
18
1.
Introduction
18
2.
The Form of Review on Habeas Corpus
21
3.
Jurisdictional Review
23
4.
Review of Patent Error
30
5.
Superior Court Orders and Convictions
41
6.
Certiorari-in-Aid of Habeas Corpus
45
7.
Privative Clauses
47
8.
Trivial Defects
49
9.
Non-Discretionary Nature of Habeas Corpus
52
10.
Habeas Corpus or Judicial Review? The Modern Approach
56
11.
Conclusion
64
3.
Consideration of Questions of Fact
65
1.
Historical Introduction - Rule against Controverting the Return
65
2.
Jurisdictional Facts
71
3.
Procedural Problems and Issues of Fact
74
4.
Review of Non-Jurisdictional Fact
77
5.
Burden of Proof
84
4.
Habeas Corpus, Fundamental Rights, and the Executive
90
1.
Introduction
90
2.
Emergency Powers: A Historical Overview
91
3.
Emergency Powers: Terrorism Legislation
105
4.
The European Convention on Human Rights
106
5.
Martial Law
114
6.
Executive Detention in Other Circumstances
121
7.
Public Interest Immunity
122
8.
Conclusion
125
5.
Habeas Corpus in Immigration Law
127
1.
Introduction
127
2.
Human Rights Act 1998
127
3.
The Early Deportation Cases
131
4.
The Modern Law: Habeas Corpus and Immigration Detention
134
5.
Self-induced Restraint
141
6.
Issues of Timing
146
7.
Conclusion
147
6.
Habeas Corpus in Criminal Law
148
1.
Review of Pretrial Proceedings and Bail
148
2.
Delay in Trial
156
3.
Review of Convictions
163
4.
Review of Sentence
165
5.
Habeas Corpus to Challenge the Validity of Conditions of Imprisonment
169
7.
Review of Detention in Cases of Mental Disorder
174
1.
Introduction
174
2.
The Scope of Review
176
3.
Criminal Cases
179
4.
Capacity to Take Proceedings
181
8.
Problems of Restraint and Time
182
1.
Restraint of Liberty as a Basis for the Writ
182
2.
To Whom the Writ Should be Directed
195
3.
Custody Lost or Transferred
197
4.
Problems of Time
198
9.
Territorial Ambit of Habeas Corpus
206
1.
Introduction
206
2.
The Decision in Ex p. Anderson and the Act of 1862
207
3.
British Isles
209
4.
Protectorates
211
5.
Diplomatic Immunity
212
6.
Territorial Waters and Ships at Sea
213
7.
Federal Jurisdictions
214
8.
Persons Held beyond the Reach of Habeas Corpus
216
10.
Appeals, Successive Applications, and Rearrest
218
1.
Appeals and Successive Applications
218
2.
Protection against Rearrest
228
11.
Aspects of Practice
233
1.
Bringing the Application before the Court
233
2.
Locus Standi and Capacity
237
3.
Third-party Applications
237
4.
Prisoner Applications
239
Index
241