NOTES OF CASES
| Date | 01 March 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb02169.x |
| Published date | 01 March 1959 |
NOTES
OF
CASES
SUCCESSIVE
APPLICATIONS
FOR
HABEAS
CORPUS
Re Hastings
(No.
Z),l
the last case to be reported in the
Weekly
Law Reports
for
1958,
is also perhaps the oddest. The
ratio
decidendi
is
accurately stated in the headnote:
"
An applicant for
a writ of habeas corpus in a criminal cause
or
matter, who has
once been heard by a Divisional Court
of
the Queen's Bench
Division, cannot be heard again, on a renewed application made
on the same evidence and the same grounds, by another Divisional
Court of the same Division, as the decision of the Divisional Court
is equivalent to the decision
of
all the judges of the Queen's
Bench Division."
At first sight it may seem remarkable that such an application
should have been made at all. But there are dicta by Lord
Halsbury L.C. in
Cox
v.
Hakes
and a decision
of
the Judicial
Committee
of
the Privy Council in
Eshugbayi Eleko
v.
Government
of
Nigeria,3
to the effect that one whose application
for
a writ of
habeas corpus has been refused may apply not only to every
superior court of competent jurisdiction but also to every High
Court judge in turn; and these pronouncements have been treated
as an authoritative statement
of
the law by every modern writer
with the exception of
Mr.
R.
F.
V.
Heu~ton.~ The applicant in
the present case had been convicted on five counts and sentenced
to four years' corrective training. The sentence was not expressed
to be concurrent on each count. On appeal, his conviction on
one count was quashed, but the sentence was not varied. He
applied to a Divisional Court of the Queen's Bench Division for a
writ
of
habeas corpus on the ground that since only one general
sentence had been passed there was no longer any lawful sentence
on him in being. His application was dismissed.'* He then
appealed to the Court of Appeal, which declined jurisdiction on
1
[1958]
3
W.L.R.
768;
also reported [1958] 3 All
E.R.
625.
2
(1890)
15
App.Cas.
506
at 514; Ree
also
Ex
p.
Chapple
(1950)
66
(Pt.
2)
3
[1928] A.C. 459.
4
Short and Mellor,
Practice
on
the
Crown
Side
(2nd
ed.),
3.70;
Halshiir~'s
Laws
of
England
(3rd
ed.), xi, 38-39; Griffits,
Cuitlc
to
Crou.n
Office
Pracfiw.
113;
Notes
to
R.S.C., Ord. 59,
r.
14, in the
Annual Pracliw;
Holds\rorth,
H.
E.
L.,
ix,
122-123; Wade and Phillips,
Constitutio?tol I,atu
(5lh
t-d.),
372-373; Keith,
Constilut,ionol
Law
(8th ed.), 379;
Hood
l'hillips,
Conalilu-
tional
Law
(2nd ed.), 504-505; Lord
Goddard,
"A
Note on
HD~JC:IJ
Corpus
"
(1949)
65
L.Q.R.
30.
5
In
a learned art,icle,
"
Habeas
Corpus
Procedore
"
(1950) 66
L.Q.R.
79,
in which he contends t,hat
the
right to make fiuccessive application3 extends
only to applications
fo
different courts,
and
not
(czcept
in
vucution)
to
difTt,rc.iit
jridges.
T.L.R. 932 at 936,
per
Denning
L.J.
5a
Re
Hustings
[1958]
1
W.L.R.
372. 184
MARCH
1959
NOTES
OF
CASES
185
the ground that the appeal arose in respect of a criminal cause
or
matter. Next, relying upon the contention that he was entitled
to go to every High Court judge in turn, he made a renewed
application to a Divisional Court of the Queen’s Bench Division
constituted
of
three different judges. The court, in
a
reserved
judgment delivered by Lord Parker
C.
J.,
dismissed the application
on
the grounds already stated.
Although this decision is an eminently reasonable one,
it
leaves
several awkward questions unanswered. The most difficult of these
questions is the least conspicuous. Granted that prior to the
Judicature Acts a writ
of
habeas corpus could be obtained from a
common law court in term time only
if
the court was sitting
in
banc,
and that by virtue of the Judicature Acts a Queen’s Bench
Divisional Court is the successor of the three common law courts
sitting
in banc,
so
that its decision is the equivalent of that of all
the judges of the Division,
it
still has
to
be ascertained
why
an
unsuccessful applicant for habeas corpus cannot approach the
Divisional Court again
on
the same facts. The obvious answer is
that the matter is
res
judicata.
But this answer seems
to
be
wrong.
It
was settled law before the Judicature Acts that succes-
sive applications on the same facts could be made to each superior
court
in turn, and still is settled law that in
vacation
successive
applications
on
the same facts can be made to each High Court
judge
in turn. These rules were based not
on
the provisions of the
Habeas Corpus Acts but (as
Mr.
D.
M.
Gordon has pointed out6)
on the doctrine that a decision to refuse a prerogative writ did not
make the matter
res judicata.
The basis of this doctrine was that
because an application for
a
prerogative writ was not accompanied
by formal pleadings,
no
writ
of
error would lie in respect of a
decision refusing it, and
no
one was concluded by a decision that
was not reviewable
on
a writ
of
error. Although the historical
basis of the doctrine has long since disappeared, the rules
per-
mitting successive applications
for
habeas corpus (though not for
the orders substituted for the other prerogative writs) survive.
If
it
is still correct
to
say that a decision refusing an application
for habeas corpus does not make the matter
res
judicata,
the
Divisional Court’s refusal to entertain the second application in
the present case must be justified by some other legal principle.
The court in fact thought
it
sufficient to say that since the applicant
had been heard once by the court he could not be heard again.
In other words,
it
relied upon an inherent duty-not a mere
discretionary power-to decline jurisdiction to entertain the
application
on
its merits. The course adopted by the court is
so
manifestly in accord with common sense that it would be captious
to
criticise the decision in terms of strict logic, but the difficulty
8
Note
(1929)
7
Can.Bar Rev.
at
52.
See
also Lord Goddard
in
65
L.Q.R.
at
34-35.
186
THE MODERN LAW REVIEW
VOL.
22
one experiences in discerning the origius
of
the duty assumed by
the court serves to emphasise the degree in which the law relating
to habeas corpus is riddled with anomalies.
The court expressly refrained from giving
a
concluded opinion
as to the right of an akplicant to go successively from judge
to
judge
of
the same court in term time. However,
it
observed that
the authorities, with the exception of
Eleko’s
case, did not support
the view that such a right existed, and that there were cogent
reasons for thinking that that case went too far.8 These observa-
tions, regarded in the light of the historical review by which they
were preceded, will materially weaken the authority
of
Eleko’s
case, which appears
to
have been wrongly de~ided.~
The decision in the present case is confined to successive applica-
tions in respect
of
a criminal cause
or
matter, but there can be
no
doubt that
it
applies equally
to
successive applications in respect
of a civil cause
or
matter.
It
is not clear what rule is to govern
successive applications to Divisional Courts of different Divisions.
On
principle
(if
considerations of principle can be given any weight
in this context)
it
would seem that such applications should not
be permitted, for the three Divisions of the High Court are not
separate courts.
An
applicant who has applied unsuccessfully in
vacation to a series of individual judges (who may be of the same
Division
or
of different Divisions) may presumably make a further
application in term time, either to a Divisional Court
or
to a single
judge under Order
59,
rule
14.
An
application already refused by
a single judge in term time cannot be renewed before a Divisional
Court of the
same
Division unless the law as stated in
Eleko’s
case
is correct; and even if
it
is correct,
Hustings’
case now stands as
authority for the proposition that the second application will
exhaust the applicant’s rights in that Division.
It
is to be hoped that before long this hotchpotch of incon-
gruities will be referred to the attention of the Law Reform
Committee. The rule that successive applications are permissible
in vacation could well be retained because of the possibility that
no
immediate appeal against refusal of the writ by one judge may
be practicable. But it is difficult to see how anything more
rational than an addiction to the sporting theory
of
justice can be
invoked to justify the retention of successive applications in term
time, at least in respect of civil matters, where appeal against a
refusal of the
writ
is permissible. The existing doubts and
anomalies should be removed by legislation prohibiting successive
applications on the same facts in term time, and providing a right
The only authority cited by the court in support of its view was an observation
made by Parke
B.
,in
the course
of
argument
in
Re
Cobbett
(1845)
5
L.T.
(0.8.)
130.
8
The court referred with approval
to
the judgment
of
FitzGibbon
J.
in
the
Irish case of
The
Stute
(Dowling)
V.
Kingston
(NO.
2)
[1937]
I.R.
699.
This judgment
is
severely critical of the decision in
Eleko’s
case.
9
Cf.
Mr. Heuston’s article, note
5,
ante.
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