Jersey & Guernsey Law Review – June 2013
Habeas corpus in Jersey
corpus in England
is a prerogative writ used to challenge the detention of a person either in
official custody or in private hands. Habeas
corpus ad subjiciendum
was directed to the keeper of the prison commanding him to bring up the body of
the prisoner with the case of his detention for scrutiny. It allows one to
apply to court for an order that somebody, i.e.
a custodian, be produced before the court to ensure that a prisoner’s
safety be protected. In Jersey an application
can also be made to the Royal
Court under its inherent jurisdiction to review
detention, but it comes to the same thing.
2 On hearing a habeas corpus application, the court will not determine guilt or
innocence, merely whether the person is lawfully imprisoned. If the court is
satisfied that the detention is prima
facie unlawful the custodian is then ordered to appear to justify it and if
he cannot do so the person is released. The name is taken from the opening
words of the writ in Medieval Latin.
3 In 1737 the Crown was advised that, as a
general principle, English writs were not enforceable within the Channel Islands.
One exception to this was habeas corpus.
The Habeas Corpus Acts of 1679 and
1816 (the “Acts”) were both clearly intended to extend to Jersey.
Section 10 of the Habeas Corpus Act
1679, which is still in force, states that—
“AND an Habeas
corpus according to the true intent and meaning of this Act may be directed
and runn into any County Palatine The Cinque Ports or
other priviledged Places within the Kingdome of
England Dominion of Wales or Towne of Berwicke
upon Tweede and the Islands of Jersey or Guernsey Any
Law or Usage to the contrary notwithstanding.”
4 Section 5 of the 1816 Act, which is
drafted in a similar manner to the above section, is also still in force. The
1816 Act applied to England,
Wales, Scotland and Northern Ireland. The Acts
expressly provided Jersey residents with the
right to challenge their detention through the English, Scottish, Welsh or
Northern Irish courts.
5 Records show that the writ of habeas corpus has been used in the Jersey courts. In 1860, Royal Commissioners heard
evidence that a person kept in confinement, by a public authority or otherwise,
could apply by Remonstrance to the Royal
Court and that the court would have him brought
before it and would investigate his complaint.
Moreover, following a lively discussion before the Commissioners, RP Marett, then Solicitor General, stated that a prisoner had
a further remedy “to sue out a writ of habeas corpus returnable in England”. Perhaps Marett had in mind the ambit of the 1679 Act.
6 Any defendant in Jersey
seeking to have a writ issued by an English court would face the difficulties
set out in the note entitled ‘Elementary Constitutional Law’
contained within the October 2008 issue of this publication—
“The Channel Islands
enjoy judicial independence. They have their own courts and judges. They have
had their own separate systems of law since 1204. The Constitutions of King
John empowered the Islanders to choose their own Jurats
to keep the pleas.
In Professor Le Patourel’s memorable phrase
‘The Islanders . . . found judicial autonomy through the
liberties of their jurats as custodians of the
No advocate can plead before the Jersey courts unless he has been admitted to
the Jersey bar. No judge can preside over the Royal Court unless
he be the Bailiff, Deputy Bailiff, Lieutenant Bailiff or a Commissioner
appointed by the Bailiff pursuant to the Royal Court (Jersey)
is true that Sir Edward Coke
purported to qualify the position, when commenting on the failed attempt to
bring an action of trespass, committed in Jersey, before
the Court of King’s Bench in 1368, by stating ‘By this it appeareth that albeit the King’s Writ runneth not into these Isles, yet his Commission under the
Great Seal doth, but the Commissioners must judge according to the Lawes and Customes of these Isles’.
But Coke appears not to have considered the important Royal Charters granted
subsequent to 1368 which confirmed the privileges of the Islanders. In
particular the Charter of Elizabeth I, granted in 1562, confirmed the exclusive
of the Royal Court
in all causes criminal and civil arising in the Island.
There is no doubt, whatever views may have been expressed in the early 17th
century, that today it is not open to the Crown to send commissioners to Jersey
to usurp the functions of the Royal Court.”
8 With regard to the right to issue habeas corpus proceedings out of
England, s 1 of the UK Habeas corpus
Act of 1862 (the “1862 Act”) states that—
“No writ of habeas
corpus shall issue out of England, by authority of any judge or court of
justice therein, into any colony or foreign dominion of the Crown where Her
Majesty has a lawfully established court or courts of justice having authority
to grant and issue the said writ, and to ensure the due execution thereof
throughout such colony or dominion.”
9 Given the above, doubt has been cast as to
whether habeas corpus applications
can be made in Jersey at all. This relates to
the wording of the Act, namely whether Jersey
is a “colony or foreign dominion of the Crown” within the meaning
of the Act.
It has also been stated that “it is a pity that the
remedy afforded by the Habeas Corpus
Act 1862 . . . was denied (possibly inadvertently) to the Channel
Islands and the Isle of Man”.
However, if the 1862 Act does apply to Jersey then a writ could theoretically
be issued in Jersey returnable before the Royal Court as “Her Majesty has
a lawfully established court or courts of justice [in Jersey] having authority
to grant and issue the said writ”.
10 The writ may still issue from the
English, Scottish, Welsh or Northern Irish courts to the Isle
of Man, that island not being a foreign dominion of the Crown
within the meaning of the statute.
If the 1862 Act does not apply to Jersey, then the writ may still theoretically
be able to issue from the English, Scottish, Welsh or Northern Irish courts to Jersey.
Bryce-Richards v Att
Gen of Jersey & States of Jersey Police
11 The case of Bryce-Richards v Att Gen of Jersey &
States of Jersey Police concerns proceedings of habeas corpus commenced by the applicant
whilst in Wales.
The applicant was a director of a Jersey trust company against whom 14 charges
of fraudulent conversion of client funds were due to be brought in Jersey. An arrest warrant, which had been obtained by the
Attorney General, was endorsed by a Cardiff magistrate
pursuant to s 13 of the Indictable Offences Act 1848 (the “1848
Act”) as the applicant was in Wales when the Jersey Police sought
to execute the warrant. The applicant challenged the validity of her arrest in Wales pursuant to an arrest warrant issued in
Jersey on the basis that, inter alia,
she would not receive a fair trial in Jersey as the legal aid scheme would not
provide her with proper representation and that the proper place for the trial
was England or Wales.
It was held by the High Court that the applicant’s arguments relating to art 6 of the European Convention on Human Rights
were a permissible ground for seeking habeas
corpus in the context of the case.
12 In habeas
corpus proceedings the burden rests upon the respondents to show that the
applicant’s detention is lawful and in Bryce-Richards the High Court held that the respondents
demonstrated that the applicant was detained lawfully pursuant to s 13 of
the 1848 Act. It was also held that there had not been, and was not likely to
be, any breach of art 5 or art 6 of the European Convention on Human Rights.
13 It should be noted that Lord Justice Rose
refers to Jersey in the Bryce-Richards judgment
as being “part of the United Kingdom”,
something that an aspirant Jersey lawyer would
be marked down for on the sources paper for the Jersey Law Course examinations.
14 There is clearly controversy as to the
availability of a writ of habeas corpus
issuing from an English court to the Jersey
authorities. However, it would seem likely that a writ of habeas corpus issued from an English (or Welsh) court to the Jersey
authorities would only succeed in the event that the defendant was situated in England (or Wales) at the time of the
application as in Bryce-Richards. Any
attempt to commence habeas corpus
proceedings in an English court while situated in Jersey would surely be
unnecessary given the relief already available under Jersey
Nicholas Le Quesne is an English solicitor and associate in Hanson Renouf’s family law department.
Statement by the then Attorney General (W Bailhache) regarding the implications
of the Police Procedures and Criminal Evidence (Codes of Practice) (Jersey)
Law, 17 June 2008, at 9.
Praecipimus tibi quod corpus
in prisona nostra sub custodia
tua detentum, ut dicitur, una
cum die et causa captionis
et detentionis suae, quocumque nomine praedictus censeatur in eadem, habeas coram nobis . . . ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus
omittatis periculo incumbente. Et habeas ibi hoc breze.
Chalmers, Opinions of Eminent Lawyers,
vol I, 1814, at 57–59.
See s 10 of the Habeas Corpus
Act 1679 and s 5 of the Habeas Corpus
Report of the Commissioners into the Civil Ecclesiastical and Municipal Laws of
the Island of Jersey, 1860. Minutes of Evidence, Question 10,995 and Answer
See Holt, “A note on the Constitutions of King John”, in A
Celebration of Autonomy 1204–2004, Jersey Law Review Ltd, 2005.
Le Patourel, The Medieval Administration of the
Channel Islands, 1199–1399, OUP, 1937, at 113.
Miscellany “Elementary constitutional law” (2008) 12 J&G L Rev.
Matthews, “Judicial review, Jersey and the First Queen Elizabeth”, (2001)
5 JL Rev 68, refers to Jersey not being a “colony” (Renouf v Att Gen for Jersey
 AC 445, at 460), and is usually described as a Crown
dependency: see e.g. the Report of the Royal Commission on the Constitution,
1969–1973 (the “Kilbrandon
Report”), vol 1, part XI, at para 1347, and the
Review of Financial Regulation in the Crown
Dependencies, Cmnd 4109 (the
“Edwards Report”), at para 1.1.2; as to “dependency”
see Halsbury’s Laws of England, 4th ed,
vol 6, at para 802. In Ex p Brown (1864) 5 B & S, the Isle of Man was held not
to be a “colony or foreign dominion” within the Act, and it may be
doubted that Jersey would be held to be in a
different position. Bois, op cit, at para 9/64, took the view that Jersey was
caught by the 1862 Act, but did not refer to Ex
p Brown or to Renouf.
See, further, R v Home Secy,
ex p O’Brien  3 KB 361 at 376 (Irish
Free State held as “colony” for this purpose).
A Constitutional History of Jersey, de L Bois, 1972, s 9/64, at
167, Acts of Parliament.
Re Brown (1864) 33 LJQB 193; compare Re Crawford (1849) 13 QB 613. See also R v Commandant of Knockaloe
Camp, ex p Forman (1917) 87 LJKB 43, DC (rule nisi granted to show cause
why a writ should not issue to a person in the Isle of Man).
Bryce-Richards v Att Gen of Jersey & States of
Jersey Police  EWHC 3365 at para 65.
Ibid, at paras 59 and 104.