Habeas Corpus as A Means of Review

Publication Date01 May 1964
DOIhttp://doi.org/10.1111/j.1468-2230.1964.tb01030.x
AuthorAmnon Rubinstein
HABEAS
CORPUS
AS
A
MEANS
OF
REVIEW
WHERE an imprisonment is founded upon the decision of a person
purporting to have legal authority, the validity of that decision
may be raised
in
habeas corpus proceedings.’ In this sense, the
writ may be considered as
a
means of judicial review
*
of such
decisions. But the scope of review afforded by this remedy raises
some difficult questions: Can the court intervene only where the
decision is void
ab
initio
as one which was made without jurisdic-
tion? In other words, is
it
a form
of
collateral attack, in which
case the court’s function is exhausted once
it
is shown that there
came into existence
a
valid (though, perhaps, irregular) act?
Or
is habeas corpus a means by which such an irregular decision can
be reviewed? What is the meaning of jurisdiction as adopted in
habeas corpus cases
?
And how does the scope of review on habeas
corpus compare with that available on certiorari
?
All these questions are easier asked than answered. The
plethora of English decisions on the subject is not very illuminating
and attempts at elucidation are rarely made.
A
study of this topic
suffers from the repercussions of certiorari law; at
a
time when
it
was believed that certiorari was a remedy for want of jurisdiction
solely, it could easily be maintained, in the same judgment, that
habeas corpus lies for want
of
jurisdiction only,8 and that
cc
the
same principles apply in a case of habeas corpus as in
a
case of
certiorari.” Nowadays, after the revival of certiorari as a remedy
lying for intra-jurisdictional
defect^,^
the scope of review
on
habeas
corpus
must be defined with more accuracy.
One may start with a negative statement by saying that habeas
corpus cannot be used in order to rehear the case
or
serve as a
means of appeaL6 This truism has been repeatedly affirmed but
1
The discussion will be confined to habeas corpus
ab subjiciendum,
the main
method for securing freedom from illegal imprisonments.
*
In
Heikkila
v.
Barber,
345
U.S.
229 (1953),
the
U.S.
Supreme
Court
held
that habeas corpus cannot be used as
a
means of judicial review. This
decision, often criticised, must mean that the remedy cannot be used
in
order
to review
valid
decisions.
3
R.
v.
Commanding Officer
of
Morn
Hill Camp,
ex
p.
Ferguson
[1917]
1
K.B.
176.
4
Ibid. per
Lord
Reading
C.J.
at p.
180;
and see further authorities to the
same effect, notes
38-40,
below.
R.
v.
Northumberland Compensation Appeal Tribunal, ex
p.
Shaw
[1952]
1
K.B.
338.
6
Re Boothroyd
(1846) 15
M.
&
W.
1,
where, however, the conrt entertained
all the objections adduced against the legality and
regularity
of the
conviction;
Ex
p. Hvguet
(1673) 29
L.T.
41;
Re Featherstone
(1953) 37
Cr.App.R.
146;
Re
Corke
[1954] 2
All
E.R.
440;
Re Wring
[1960] 1
W.L.R.
138
(Practice Note);
R.
v.
Governor
of
Parkhurst Prison,
ex
p.
Philpot
322

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