HABEAS CORPUS APPEALS*

Publication Date01 Jan 1952
DOIhttp://doi.org/10.1111/j.1468-2230.1952.tb02110.x
AuthorA. M. Qasem
HABEAS
CORPUS
APPElALS
*
BEFORE
the Judicature Act,
1873,
appeal did not lie from any order
made in habeas corpus proceedings remanding
or
discharging the
person detained.’ This position has remained, for reasons which
will be considered in this article, almost unaffected by that Act and
the present law may be summarised as follows
:
-
(1)
No
appeal lies from habeas corpus proceedings in a criminal
cause
or
matter;
(2)
No
appeal lies from an award
of
the writ; and
(3)
Appeal lies in all’other cases.
We deal now with each category separately, beginning with appeals
in a criminal cause
or
matter.
I
Section
10
of the Judicature Act,
1873,
declares that the Court
of Appeal, created by the Act,
shall have power’ to. hear appeals
from any judgment or,order, save as hereinafter mentioned, of Her
Majesty’s High Court of Justice,
or
any judges
or
judge thereof,”
and the last clause of section
47
of the same Act provides that
no
appeal shall lie from any judgment of the High Court in any criminal
cause
or
matter, save in some error of law apparent upon the
record, etc.”
The classic definition of a criminal cause
or
matter was given by
Lord Cave
L.C.
in Re
Clioord
and
O’Sullivun.Y
He said: “In
order that
LL
matter may be a criminal cause
or
matter,
it
must,
I
think, fulfil two conditions which are connoted by and implied in
the word ‘criminal.’
It
must involve the consideration of some
charge of crime, that
is
to say, of an offence against the public law,
. . . and that charge must havc been preferred
or
be about to be
preferred before some court
or
judicial tribunal having
or
claiming
jurisdiction to impose punishment for the offence
or
alleged
offences.” A civil cause
or
matter is a non-criminal one, and covers,
therefore, all proceedings which are not criminal within the above
definition. In criminal proccedings the defendant is charged with
committing a particular crime. This is an obvious statement, but
*
Tho author
niould
like to express his thanks and gratitude
to
Prof.
Glanville
L.
Williams for reading the innnuscript and making ninny valuable suggcstions.
Of
coursc, his kindness
does
not involve him in any responsibility for the views
expressed.
1
Although Lord Goddard, in
(1949)
65 L.Q.R.
30,
limits his observations to
appeals in criminal cases the reasons he gives apply equally
to
other cases
of
habeas corpus, and Wilmot’s opinion, Wilmot pp. 107,
109,
is
of
n
nature. It applies with equal force
to
prevent appeals in all cases
of
corpus.
2
[192l]
2
A.C.
570, at p.
580.
56

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