Habeas Corpus

selfrep

I was wondering does anyone know if Habeas Corpus only applies to those in prison? what if someone is arrested, charged and awaiting trial and are out on bail and must sign on daily in this instance are they being unlawfully detained if they can prove they are not guilty and could they apply for a habeas corpus order ?

From Wikipedia :
In the Republic of Ireland access to the remedy of habeas corpus is guaranteed by Article 40.4 of the 1937 constitution. This guarantees "personal liberty" to each individual and outlines a detailed habeas corpus procedure. It does not mention the Latin term but includes the English phrase "produce the body". The constitution provides that the habeas procedure is not binding on the Defence Forces during a state of war or armed rebellion.

Article 40.4.2° states that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The full text of the provision is as follows:

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. [Italics added]

The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the remedy was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.

Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as he wished. Since the Second Amendment, a prisoner has had only the right to apply to one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that if the High Court believes someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.

In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.

Victor

Paragraphs are nice.

Are we doing your homework?

The constitution is a balance of conflicting rights.

Bail is not detention and requiring signing-on would likely be interpreted as a reasonable requirement for the orderly running of the justice system, which maintains the accused's (substantial) liberty.

An accused is entiteld to ask the court to amend bail conditions if they feel they excessively interfere with the accused's life.

While the accused may have exculpating evidence, the prosecution might have the opposite. Once a prima facie case has been shown, the balance is normally decided at trial.

If this is you, talk to your solicitor.

MagicSean

Victor wrote: »

Are we doing your homework?

I think its more likely we are preparing his defence.

selfrep

neither doing my homework nor preparing my defence just getting second opinions on our good old constitution, i dont see how habeas corpus could be a defence though?

selfrep

Victor wrote: »

Paragraphs are nice.

Sorry i edit copy edit paste from wikipedia but fixed the paragraphs...:cool::D

johnnyskeleton

selfrep wrote: »

neither doing my homework nor preparing my defence just getting second opinions on our good old constitution, i dont see how habeas corpus could be a defence though?

Whether a person is guilty or not guilty is immaterial as to their bail terms. The terms are there to ensure that they attend at trial, not to punish.

Milk & Honey

Habeas corpus is not a defence. It is a procedure requiring the custodian to justify the detention of a person. A person on bail is not in custody.
There is a right of appeal against bail conditions.

Reloc8

selfrep wrote: »

I was wondering does anyone know if Habeas Corpus only applies to those in prison? what if someone is arrested, charged and awaiting trial and are out on bail and must sign on daily in this instance are they being unlawfully detained if they can prove they are not guilty and could they apply for a habeas corpus order ?

Habeas Corpus has no application to a person not being held in custody, whether in prison, a garda station or any other institution of the State. As noted by you in your OP the procedure is to raise the issue of the detention said to be unlawful in the High Court where if satisfied that there may be an issue as to its legality a Judge will commence an inquiry requiring the State to justify the detention of the person concerned.

The answer to your question is therefore no.

For the avoidance of doubt having to sign on as a condition of bail is not an encroachment on your liberty which is relevant for the purposes of Article 40 of the constitution. The Habeas Corpus procedure could apply to a bail bond situation only if an unlawful condition was imposed on someone's bail such as prevented them from taking the bail up. There would be some legal discussion of whether Article 40 or Order 84 of the Rules of the Superior Courts (relief by way of Judicial Review) governed that situation.

Victor

Reloc8 wrote: »

The Habeas Corpus procedure could apply to a bail bond situation only if an unlawful condition was imposed on someone's bail such as prevented them from taking the bail up.

Would that include something that was possible, but not practical, e.g. insisting on a high value cash bail bond, when the prisoner has modest assets/income?

Jo King

Victor wrote: »

Would that include something that was possible, but not practical, e.g. insisting on a high value cash bail bond, when the prisoner has modest assets/income?

The remedy in that situation is an appeal. Onerous conditions such as excessive cash lodgement imposed in the District court can be appealed to the High Court and then to the Supreme Court.
There is a slim possibility that in the event of an absolutely outrageous bail condition being imposed then a Habeas Corpus application might be entertained. This would usually be in response to the District Court judge behaving in an oppressive manner well beyond the limits of reasonable behaviour.

biddybops

Hi
I read with some interest this discussion and have a question. If a child is illegally adopted why would a habeas corpus be used. If what you say is true and that it is only used if a person was being detained by the state, then an adoption is not a detention and the habeas corpus would not be valid.
I would appreciate your thoughts on this.

McCrack

biddybops wrote: »

Hi
I read with some interest this discussion and have a question. If a child is illegally adopted why would a habeas corpus be used. If what you say is true and that it is only used if a person was being detained by the state, then an adoption is not a detention and the habeas corpus would not be valid.
I would appreciate your thoughts on this.

A child in law is under 18. I can safely say that there has not been any illegal adoptions in this country since 1993. If we were to go back in time to say the 1960's or 1970's to when there would be a possibility of a child being placed illegally for adoption habeas corpus would not be an appropriate remedy simply because that child is not being detained. Whilst their adoptive parents would have custody they are not being detained which is the purpose of a habeas corpus application.

biddybops

McCrack wrote: »

biddybops wrote: »

Hi
I read with some interest this discussion and have a question. If a child is illegally adopted why would a habeas corpus be used. If what you say is true and that it is only used if a person was being detained by the state, then an adoption is not a detention and the habeas corpus would not be valid.
I would appreciate your thoughts on this.

A child in law is under 18. I can safely say that there has not been any illegal adoptions in this country since 1993. If we were to go back in time to say the 1960's or 1970's to when there would be a possibility of a child being placed illegally for adoption habeas corpus would not be an appropriate remedy simply because that child is not being detained. Whilst their adoptive parents would have custody they are not being detained which is the purpose of a habeas corpus application.

Hi
Many thanks for the information and hate to be pedantic but i know for a fact that a habeas corpus was used to return a child. I didnt know if this was common procedure or not. Can you think as to why a hb would be used
Many thanks

McCrack

I'm surprised to hear that. In times gone by (and indeed today if the situation of an illegal adoption arose) I would not have thought Habeas Corpus was the appropriate remedy.

Habeas Corpus is used and still the case today as an emergency means to enquire into the lawfulness of a persons detention by either the Gardai or usually the prison authorities. It's concerned with detention of a person not custody in the sense of having custody of a child.

I mean I've never come across it in family law for instance where one parent has custody of a child in breach of a Court Order which is illegal and Habeas Corpus would just not be the appropriate remedy.

biddybops

McCrack wrote: »

I'm surprised to hear that. In times gone by (and indeed today if the situation of an illegal adoption arose) I would not have thought Habeas Corpus was the appropriate remedy.

Habeas Corpus is used and still the case today as an emergency means to enquire into the lawfulness of a persons detention by either the Gardai or usually the prison authorities. It's concerned with detention of a person not custody in the sense of having custody of a child.

I mean I've never come across it in family law for instance where one parent has custody of a child in breach of a Court Order which is illegal and Habeas Corpus would just not be the appropriate remedy.

Many thanks for your reply, can't discuss it too much but maybe because it was brought against a health board rather than an adoption society maybe that has some bearing on it. Just trying to figure it out and i appreciate any input so if anything occurs to you in the future perhaps you would be kind enough to post.
Many thanks

Victor

I wonder if the child was in the care of the state (possibly fostered) and not adopted.

MagicSean

Victor wrote: »

I wonder if the child was in the care of the state (possibly fostered) and not adopted.

Or a case were a child had been taken under Section 12?

biddybops

Victor wrote: »

I wonder if the child was in the care of the state (possibly fostered) and not adopted.

Good question, permission had been given for the child to be kept for six weeks in health board facility as the mother was ill after the birth and a form was signed agreeing to this. The child was supposed to be have kept in the hospital for a period of 2 to 4 weeks prior to her transfer as she was slightly underweight and the mother signed a form also agreeing to this. When the mother recovered from the surgery she had to undergo she went to the hospital to pick up the child and was informed that the social worker had removed the child. The child had been placed for adoption and a habeas corpus was issued for the return of the baby. Time was also a factor as the adoptive parents were insisting that the natural mother undergo all the tests and interviews that they had go go through with the adoption board. So i think time was the most important factor.

Victor

What era was this?

Sounds like a zealous / misguided / misinformed social worker who overstepped their authority.

biddybops

Victor wrote: »

What era was this?

Sounds like a zealous / misguided / misinformed social worker who overstepped their authority.

Dont know what happened my last post but if anyone can shed a bit of light on this would appreciate it

johnnyskeleton

As far as I know, an article 40 application was the procedure in the baby Anne case (n v hse). I suppose it is used as a means of having the matter heard and determined promptly.

biddybops

johnnyskeleton wrote: »

As far as I know, an article 40 application was the procedure in the baby Anne case (n v hse). I suppose it is used as a means of having the matter heard and determined promptly.

Thanks for the input.

biddybops

Many thanks for all your help. I spent the last couple of days going through old files and doing research and seeing as everybody was so helpful I thought it only right to share the information.

Under section 3 of the 1974 adoption act only the adopting applicant can apply to the courts regarding the welfare of the child, this is where the natural mother

(a) fails, neglects or refuses to give consent
or
(b) withdraws a consent already given

If the case is regarding the legality of who had rights of ownership of the child a Conditional order of Habeas Corpus is applied to force the state to produce the body or to give reasons as to why the state has a legal right to keep the child.


I have to state quite clearly I am only going on my own research and the findings that I have found are of my own opinion and my reading of certain files and legal findings.