BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4’s legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.
How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.
Potter is proud of English law: “a boon we have given the world”. He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679, Bill of Rights 1689 – and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.
He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Mont Orgueil Castle in Jersey, a place for 17th century “extraordinary rendition”. There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.
In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment “is something we hope has been consigned to history”. The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.
Unfortunately, within days of Potter’s broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.
According to evidence at his Court of Appeal case in 2011, Rahmatullah, a Pakistani captured in Iraq, was handed over to the US authorities by the British SAS. This was followed by his rendition to Bagram in Afghanistan, apparently without the UK being aware of the move. At the time there was a memorandum of understanding in place that the US and Britain would observe the Geneva Convention and international law in its dealings with detainees related to the Iraq war.
‘In every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus’ – Habeas Corpus Act 1640
According to this agreement the “detaining power” (Britain in Rahmatullah’s case) can require the return of its prisoners from the “accepting power” (the US) on demand and without delay. The detaining power shall have full rights of access and the detainees’ removal from Iraq should be done only by mutual agreement between the two powers.
This, on the face of it, would give Britain the right and power to demand Rahmatullah’s return from Bagram (where he is held without charge or access to full legal rights) – assuming that Britain did not willingly connive in his removal. In 2009 the UK Government accepted that it should have questioned the removal to Bagram. In 2010 a US detaining board said Rahmatullah was “not an enduring security threat” and he should be released.
The argument of his supporters is that Rahmatullah’s continued detention is unlawful and the UK Government has standing, thanks to the memorandum, to have him released. The Government argues, however, that it does not exercise sufficient control over him to be subject to a writ of habeas corpus.
Potter points out that the Americans have absorbed habeas corpus into their constitutional law and leaves us with the impression that it has been effective in freeing the prisoners of that other extra-jurisdictional Jersey-style facility in Guantánamo Bay. But that’s another story. The legal issue here is whether a writ of habeas corpus would force the UK government to exercise its powers under the memorandum to have Rahmatullah released. In December 2011 the Court of Appeal said yes and issued the writ. It is this position the Government refuses to accept and which it appealed against in the Supreme Court.
Mr Potter sees the parallel between 17th century Jersey and Bagram or Guantánamo. He might well see in Rahmatullah’s plight (and that of many others since 2001) a parallel with his tale of 17th century radicals, such as “Freeborn John” Lilburne, and their rendition to Jersey and other places beyond the jurisdiction of the courts and of habeas corpus – but he makes no mention of such modern cases.
The trouble with the Whig interpretation of history is that it is unilinear and stops about 100 years ago. It assumes that the hard fought for and beneficial development of our constitution can never go back from that point, and if anything, things can only get better.
Mr Potter should abandon his rosy view of the evolution of English law and rework his story, accepting the reality: history repeats itself – first as tragedy and then as another tragedy.
Note: Rahmatullah failed in his Supreme Court case but is now (30 July 2014) suing the UK Government, accusing it of of responsibility for his subjection to torture and abuse over 10 years. Guardian report here.
Since this post we have had the David Miranda affair in which ports and airport transit lounges are deemed beyond normal legal protections for those suspected of involvement in terrorism. The issue is examined here
Materials attached to this post below include case links and habeas corpus legislation
• Reprieve has information and resources on the Rahmattullah case here
A pre-“war on terror” British habeas corpus case is that of Hardial Singh in 1983, reported here
Other posts considering historical constitutional issues:
Torture, a history of hypocrisy
Baroness Warsi and the holy alliance to capture the British constitution
Also read: The rule of law or bending the rule of law on the A v Home Secretary detention case
And: Is Magna Carta such a great charter?
The Hardial Singh principles:
i) The Defendant [the Secretary of State] must intend to deport the person and can only use the powers to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Defendant will not be able to effect deportation within that reasonable period, [the Secretary of State] should not seek to exercise the power of detention;
iv) The Defendant should act with reasonable diligence and expedition to effect removal.
Extracts from constitutional materials regarding habeas corpus
Magna Carta Chapter 39
“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”
Potter quoting this uses the modern word “seized” instead of disseised, implying that “no man may be seized” by the authorities. The original “disseised” means rather that estates in property may not be unlawfully taken into possession by the monarch nor may rights and “liberties” – privileges granted to individuals by the Crown. This may include the right not to be imprisoned but the barons were rather more interested in protecting their property rights and their own freedoms than keeping ordinary people out of bad King John’s dungeons. Chapter 39 has been superseded and Magna Carta has no constitutional import today. See: Is Magna Carta such a great charter?
Habeas Corpus 1640
This is dealt with in Section VI of An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber. Section VI has been replaced in particular by the Habeas Corpus Act 1679, which, in amended form, remains on the statute books.The 1640 provision reads thus:
VI. Every Person committed contrary to this Act shall have an Habeas Corpus for the ordinary Fees.
And be it alsoe provided and Enacted That if any person shall hereafter be committed restrained of his Libertie or suffer imprisonment [by the Order or Decree of any such Court of Star Chamber or other Court aforesaid now or at any time hereafter having or p[re]tending to have the same or like Jurisdiction power or authoritie to commit or imprison as aforesaid Or by the command or Warrant of the Kings Majestie his Heires or Successors in theire owne Person or by the Command or Warrant of the Councell board or of any of the Lords or others of his Majesties Privy Councell:
That in every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other Person in whose custody the party committed or restrained shall be [and the Sheriffs Gaoler Minister Officer or other p[er]son in whose custody the p[er]ty so committed or restrained shall be shall at the return of the said Writ & according to the command thereof upon due and convenient notice thereof given unto him [at the charge of the party who requireth or procureth such Writ and upon securitie by his owne bond given to pay the charge of carrying back the prisoner if he shall be remanded by the Court to which he shall be brought as in like cases hath beene used such charges of bringing up and carrying backe the prisoner to be alwaies ordered by the Court if any difference shall arise thereabout bring or cause to be brought the body of the said party so committed or restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall issue in open Court and shall then likewise certifie the true cause of such his deteinor or imprisonment and thereupon the Court within Three Court dayes after such return made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said return be just and legall or not and shall thereupon do what to justice shall appertaine either by delivering bailing or remanding the prisoner.
And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other person aforementioned contrary to the direction and true meaning hereof That then such person so offending shall forfeit to the party grieved his trebble damages to be recovered by such meanes and in such manner as is formerly in this Act limited and appointed for the like penaltie to be sued for and recovered.
Habeas Corpus Act 1679
This granted the right of habeas corpus outside the law terms since prisoners were being held for weeks or months while courts were closed. It also dealt with the loophole regarding Jersey (and other places including Scotland). Section XI says:
And for preventing illegall Imprisonments in Prisons beyond the Seas Bee it further enacted by the Authoritie aforesaid That noe Subject of this Realme that now is or hereafter shall be an Inhabitant or Resiant of this Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede shall or may be sent Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter shall be within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall and that if any of the said Subjects now is or hereafter shall bee soe imprisoned every such person and persons soe imprisoned shall and may for every such Imprisonment maintaine by vertue of this Act an Action of false Imprisonment in any of His Majestyes Courts of Record against the person or persons by whome he or she shall be soe committed detained imprisoned sent Prisoner or transported contrary to the true meaning of this Act and against all or any person or persons that shall frame contrive write seale or countersigne any Warrant or Writeing for such Committment Detainer Imprisonment or Transportation or shall be adviseing aiding or assisting in the same or any of them and the Plaintiffe in every such Action shall have Judgement to recover his treble Costs besides Damages which Damages soe to be given shall not be lesse then Five hundred pounds In which Action noe delay stay or stopp of Proceeding by Rule Order or Command nor noe Injunction Protection or Priviledge whatsoever nor any more then one Imparlance shall be allowed excepting such Rule of the Court wherein the Action shall depend made in open Court as shall bee thought in Justice necessary for speciall cause to be expressed in the said Rule and the person or persons who shall knowingly frame contrive write seale or countersigne any Warrant for such Committment Detainer or Transportation or shall soe committ detaine imprison or transport any person or persons contrary to this Act or be any wayes adviseing aiding or assisting therein being lawfully convicted thereof shall be disabled from thenceforth to beare any Office of Trust or Proffitt within the said Realme of England Dominion of Wales or Towne of Berwicke upon Tweede or any of the Islands Territories or Dominions thereunto belonging and shall incurr and sustaine the Paines Penalties and Forfeitures limitted ordained and provided in the Statute of Provision and Premunire made in the Sixteenth yeare of King Richard the Second and be incapeable of any Pardon from the King His Heires or Successors of the said Forfeitures Losses or Disabilities or any of them.