The Unruly Writ of Habeas Corpus
| Author | D. M. Gordon |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00728.x |
| Date | 01 September 1963 |
| Published date | 01 September 1963 |
THE
UNRULY WRIT
OF
HABEAS
CORPUS
FOR
those who enforce the criminal law, there have long been
worrying possibilities that prisoners could abuse the remedy by
habeas corpus and canvass
a
number of courts or judges
in
succession. That could mean that after several had held a prisoner
to
be
rightly in gaol, the wrong-headedness of still another could
nullify all the earlier decisions. That worry reached its climax
when the
Privy
Council held in
Eshugbayi Eleko
v.
Nige7'ia
that
a
prisoner could canvass in turn every judge of every court that had
jurisdiction. Such
a
doctrine threatened to multiply applications
to
a
preposterous extent.2 reduced this danger very substan-
tidy. Two Divisional Courts (one confirming the other) by their
rulings effectively destroyed the pre-Judicature Act practice
of
going
from court
to
court by holding that since that Act only one English
court could hear an application for the writ,
viz.,
the High Court,
that all Divisional Courts were merely representatives of that court,
and that when one Divisional Court had refused to grant the writ or
release the applicant, then
no
other Divisional Court could be
applied to, but the applicant had exhausted his remedies. The
Hastings
decisions expressly dissented from the Privy Council's
view that an applicant could go from one judge sitting in court to
another.
In
vacation, however, an applicant had for centuries been able
to
go
to
a
judge
in
chambers; and the
Hastings
decisions left open
the question whether an applicant could not go from one chamber
judge
to
another after
a
refusal. Indeed, some
of
their language
rather encouraged that idea.4 This seems rather surprising, since
their general reasoning seemed to be against every renewal of an
In
1958
the
Hastings
cases
[lSrra]
A.C.
469.
The possible results are stated most forcibly
in
an Irish and
8
Canadian
case.
In
State
(Dotoling)
v.
Kingston
[1937]
I.R.
609
at p.
746
Fitzgibbon
J.
said:
"
.
. .
it is to my mind almost inconceivable that the legislature, when
enacting the Judicature Act
.
. .
deliberately set up,
for
the purpose of
habeas
corpus
applications and for them alone, twenty-eight tribunals
of
co-ordinate jurisdiction, any single one of which might, without the possibility
of an appeal, overrule the considered opinions of the other twenty-seven."
Similarly in
Ez
p.
Shane
[1959] O.R.
337
McRuer
C.J.
stated:
"
Counsel
for the prisoner on this application
to
me claims that he has
a
right to
apply from judge
to
judge until he has
a
decision in
his
favour or has
had
his
application heard by all the judges exercising the jurisdiction of
the Supreme Court of Ontario. This would
mean
that thirty-one applications
could be made."
Re
Hastings
(No.
2)
119591
1
Q.B.
358;
Re
Hastings
(No.
3)
r1959) Ch.
368.
Re
Hastings
(No.
2)
fl959j
1
Q.B.
358
at
pp. 372,-376;
Re Hastings
(No.
3)
[1959] Ch.
368
at p. 379.
520
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