BRINGING UP THE BODIES (1)


HABEAS CORPUS

Habeas Corpus is a useful constitutional relief for a citizen who believes that he or she is being detained illegally. It may be used in the context of a detention in a prison or a mental institution (approved center) for example. The literal meaning of the latin expression habeas corpus is "that you have the body".

ARTICLE 40.4 IRISH CONSTITUTION (FUNDAMENTAL RIGHTS; PERSONAL RIGHTS)

The modern relief is rooted in Article 40.4 of the Irish Constitution.

Article 40.4.1 states that 'no citizen shall be deprived of his personal liberty save in accordance with law'.

Article 40.4.2 stipulates that 'upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.'

Article 40.4.3 goes on to say that 'where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Court of Appeal by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Court of Appeal has determined the question so referred to it.'

HABEAS CORPUS ACT 1782

The Habeas Corpus Act 1782 remains on the statute books and is referred to in the superior court rules. Order 84.3 stipulates that 'Unless the Court shall otherwise direct(a) the application for an order of habeas corpus ad subjiciendum shall be on affidavit which shall be entitled shortly in the matter in question and in the matter of the Habeas Corpus Act, 1782.'

The historical context of the Habeas Corpus Act 1782 is interesting. It was enacted by the Irish Parliament (known as Grattan's parliament) during a period of legislative freedom from London. This legislative freedom was short lived and ended with the Act of the Union in 1800, precipitated by the 1798 rebellion.

In practice most if not all applications for Habeas corpus are grounded in Article 40.4.

For more information call us on (052) 6125350 or email info@heslinryan.com


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