Habeus Corpus & Probation

habcorpus

Hello,

I am doing research on Habeas Corpus in Ireland and I cant seem to find any reference to the position of Habeas Corpus and someone on probation. If you are not in jail but on probation can you apply for a habeus corpus order if you feel you shouldn't be on probation or if the length of probation was severe. I don't see any reference to it on wikpedia http://en.wikipedia.org/wiki/Habeas_corpus

coylemj

Short answer: No.

Habeus Corpus is a process which orders an agent of the state to produce before the court someone who is in custody in order that the legality of their detention may be examined. It is not an appropriate process where someone is serving a custodial sentence imposed as a result of a criminal conviction where there are defined avenues of appeal.

And it has nothing whatsoever to do with probation, fines, disqualifications from driving or any other non-custodial sanctions imposed by the courts.

Bunreacht na hEireann 40.4.2

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.

NoQuarter

No. Habeus Coprus, as with the now more commonly practiced application under article 40.4 of the Constitution is a procedure to remove someone from unlawful detention. The applicant must be in detention somewhere to invoke the remedy.

If you feel you shouldn't be on probation or the length is too severe, you should either use the normal channels, ie, a de novo appeal or else a judicial review.

Tom Young

I think there's a logic problem with Habeas Corpus, probation and Bail.

How can the State produce a body, when the accused has been admitted to Bail or probation?

The three are conceptually basic procedures, two with foundations in the Constitution.

The third, probation, a creature of Statute.

Liberty being one, the presumption of innocence (until proof of guilt at the requisite standard) the other, applying to both - bail and probation.

I admittedly added bail in error.

habcorpus

so then if one is on probation and breaks the terms of ones probation and appears back before the judge and the judge imposes the custodial sentence upon the person for violating the terms of probation could the person then inform the judge that they wish to apply for a habeus corpus order? and would the judge have to comply or would the person have to go through a solicitor?or can the accused party just ask the judge to begin habeus corpus proceedings?

NoQuarter

habcorpus wrote: »

so then if one is on probation and breaks the terms of ones probation and appears back before the judge and the judge imposes the custodial sentence upon the person for violating the terms of probation could the person then inform the judge that they wish to apply for a habeus corpus order? and would the judge have to comply or would the person have to go through a solicitor?or can the accused party just ask the judge to begin habeus corpus proceedings?

Yes, then you can apply for habeus corpus. The judge must hear it. It's a technical legal remedy and a certain standard has to be met first. Then a hearing takes place. It can all be done within one day as it's given priority but it is a legal argument so it would be very wise to have a legal team.

habcorpus

NoQuarter wrote: »

Yes, then you can apply for habeus corpus. The judge must hear it. It's a technical legal remedy and a certain standard has to be met first. Then a hearing takes place. It can all be done within one day as it's given priority but it is a legal argument so it would be very wise to have a legal team.

If probation services return you to court are you automatically entitled to have legal representation? does it have to be the original solicitor you had for the trial or can you request a new one

Pro Hoc Vice

NoQuarter wrote: »

Yes, then you can apply for habeus corpus. The judge must hear it. It's a technical legal remedy and a certain standard has to be met first. Then a hearing takes place. It can all be done within one day as it's given priority but it is a legal argument so it would be very wise to have a legal team.

Just to clarify only a High Court judge can hear a haebus corpus application. The norm is to make an emergancy application before the high court, who will give a order that the person be produced. The court will then on the production of the person look into the detention and see if it is lawful.

Pro Hoc Vice

habcorpus wrote: »

If probation services return you to court are you automatically entitled to have legal representation? does it have to be the original solicitor you had for the trial or can you request a new one

All person before the court on a criminal charge have a right to legal representation. It can be any lawyer of the accused's choice. If the accused can not afford it, then the state must pay for the lawyer. To be clear it can be a different solicitor, but its properly best to use the same one.

NoQuarter

infosys wrote: »

Just to clarify only a High Court judge can hear a haebus corpus application. The norm is to make an emergancy application before the high court, who will give a order that the person be produced. The court will then on the production of the person look into the detention and see if it is lawful.

Yes, all set out in Article 40.4.