The Law of Habeas Corpus, 3rd Edition


The Law of Habeas Corpus, 3rd Edition

Author Judith Farbey, Robert Sharpe, Simon Atrill
Publication Date Feb 2011
ISBN 9780199248247
Hard Cover 
Publisher Oxford

Habeas corpus is the primary mechanism under common law for protecting personal liberty. Through this ancient writ, the court can assume control over a prisoner's body to release them if no lawful reason for their detention exists.

Habeas corpus ensures release from any form of custody, whether imposed by state authorities or criminal entities. Its application is as varied as the forms of confinement it addresses. For instance, it can be used to release a patient wrongfully detained for compulsory medical treatment or to resolve issues of parental custody of a child.

This volume begins with the historical development of the writ, tracing its rise to central constitutional importance. It then examines the current limits of the remedy, detailing the modern application process and assessing the scope, function, and role of habeas corpus. The relationship between habeas corpus and fundamental rights is also explored.

The book provides a critical analysis of judicial review in the context of habeas corpus and investigates its past, present, and future uses. It aims to offer a comprehensive overview of current English law, with additional discussions on the position in other Commonwealth countries. The volume concludes with a procedural guide and sample forms.

Key Points:

-Importance: Individual liberty is a fundamental right essential to the rule of law, and habeas corpus is the only remedy directly applicable to this human right.
- Comprehensive and Up-to-Date: The book provides a complete and current statement of the law, thoroughly exploring the background, principles, practice, and procedure.
- New Developments: Updated to reflect significant case law and literature developments since the last edition in 1989.
- New Chapters: One chapter focuses on habeas corpus and fundamental rights, particularly in relation to the Human Rights Act 1998, the European Convention on Human Rights, and the Canadian Charter of Rights and Freedoms. Another chapter examines the evolution of judicial review and its relationship to habeas corpus.
- Practical Tools: For the first time, the book includes sample forms for practitioners in an expanded section on practice and procedure.

Contents of The Law of Habeas Corpus, 3rd Edition:

Part I: The General Part
1. Historical Aspects
2. Habeas corpus: a procedure, remedy, and right
3. Detention - a Precondition?

Part II: The Grounds for Review
4. Habeas corpus and Fundamental Rights
5. Grounds for Review
6. Jurisdictional Review and Error of Law
7. Factual Review
8. The Executive

Part III: Two Areas of Differing Application
9. Criminal Law
10. Compulsory Treatment

Part IV: Further Considerations of Effectiveness
11. Territorial Ambit
12. Appeals

Part V: Aspects of Practice
13. Aspects of Practice

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