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The Law of Habeas Corpus 3rd ed

ISBN13: 9780199248247
Previous Edition ISBN: 0198254040
Published: February 2011
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £135.00

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Habeas corpus is the principal means under the common law for the protection of personal liberty. By this ancient writ, the court assumes control over the body of a prisoner so it can discharge him or her to freedom if no proper legal cause can be shown for detention.

Habeas corpus secures release from any form of custody, whether decreed by the highest powers of the state or the lowest gangland slave-trader. Its reach is as diverse as the forms of confinement. For just two examples beyond the prison wall, a patient wrongly detained for compulsory medical treatment can invoke its protection and it can even be deployed to determine the proper parental custody of a child.

This volume looks first at the historical development of the writ, tracing its growth in significance until its emergence as an item of central constitutional importance. Having established the traditional place of habeas corpus, the volume goes on to examine the limits of the remedy today. It describes the modern workings of the application for habeas corpus and assesses the scope, function, and role of the procedure. It explores the relationship between habeas corpus and fundamental rights.

The volume critically surveys the nature of judicial review on habeas corpus and investigates past, present, and potential future uses of the writ. It aims to provide a comprehensive statement of current English law, with added discussion of the position in other Commonwealth countries. The volume concludes with a guide to procedure and sample forms.

  • Topic of great importance: liberty of the individual is a fundamental right and essential to the rule of law
  • Habeas corpus is the only remedy directly applicable to a human right
  • Complete and up-to-date statement of the law
  • Thorough exploration of the background and principles, together with practice and procedure
  • The book has been completely updated to reflect significant developments in the case law and the literature since the last edition in 1989
  • One new chapter will devote special attention to habeas corpus and fundamental rights, looking in particular at the Human Rights Act 1998, the European Convention on Human Rights and also the Canadian Charter of Rights and Freedoms
  • Another new chapter will explore first principles and examine the evolution of judicial review and its relationship to habeas corpus
  • For the first time, the book will include sample forms for practitioners in an extended section on practice and procedure

Constitutional and Administrative Law, Human Rights and Civil Liberties
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