Law students are expected to know when and how to use the expression Habeas Corpus – but what does it actually mean?
Habeas Corpus is a Latin expression, meaning ‘you shall have the body’. This sounds gruesome, conjuring up historical images of prisoners rotting away in dark dungeons, closed off from daylight and the fresh air of justice. But Habeas Corpus is our legal protection against this very thing happening. We need to appreciate the value and deep history of Habeas Corpus as “The Great Writ of Liberty” – and how it thwarts arbitrary detention.
Sir Edward Coke anchored the spirit of Habeas Corpus in the Magna Carta, proclaimed more than 800 years ago in 1215. Clause 39 said in effect that, ‘No free man shall be arrested or imprisoned…except by the lawful judgment of his peers or by the law of the land’. By Habeas Corpus, independent judges held a shield, protecting people from abuses of power – ensuring that all authorities, even the Crown, were under the common law.
Habeas Corpus is a form of Writ issued by a court. A prisoner could issue a Writ of Habeas Corpus to their jailer (the person keeping the prisoner locked away). Upon receipt of the Writ, the jailer would have to ‘produce the body’ – that is, bring the prisoner into open court – and account for why the person was being held. The judge could ‘hear their sighs’ and decide if there was any legal basis for imprisonment. If not, the judge had the power to order their release. If the jailer ignored or refused to answer the Writ, then the jailer could be jailed. In this way, the Writ of Habeas Corpus has long been a powerful weapon against arbitrary detention.
The notorious English criminal, Ikey Solomon, made good use of Habeas Corpus, both in London and Hobart. He is thought to be the basis for ‘Fagin’, a central character in Charles Dickens’ novel, Oliver Twist. In London, Solomon’s jailers produced him to court, answering a Writ of Habeas Corpus. The judge was persuaded that his imprisonment was lawful, but Solomon had a plan B. As the guards put him into a horse-drawn carriage for return to prison, they failed to notice Solomon’s father-in-law was holding the reins. By this cunning plan, Solomon was driven to freedom, before absconding to the United States.
The London police then charged Solomon’s wife, Ann, with receiving stolen goods and a judge sentenced her to transportation to Van Diemen’s Land (Tasmania). Solomon then made his way to Hobart, via South America, to join her but was instantly recognised. Many Tasmanian convicts were old friends from the London underworld. Even so, although the local authorities knew of Solomon’s London escape and ‘wanted’ status, there was no legal basis to arrest him in Hobart without a warrant from England. Solomon roamed free and set up a tobacco store in the main street.
A year later, the warrant arrived by ship from London and Solomon was taken to Hobart prison. He issued a Writ of Habeas Corpus, successfully challenging the warrant for technical deficiencies. In these sorts of ways, the authorities were held accountable by Habeas Corpus to follow the strict letter of the law for any deprivation of liberty – a legal right that could be asserted even by notorious criminals in the penal colonies of early Australia.
The Solomon story is a reminder of how Habeas Corpus, as ‘The Great Writ of Freedom’, sits at the core of our system of law. Anyone detained has the right to know why they are held. Those reasons must be legally valid. Our basic assumption of freedom must be so hard to dislodge that any mistakes of form or process count against the person taking away that freedom. Across the world, some societies are governed by a kind of law anchored in force and command. In Australia, by contrast, we should never take for granted what it means to live freely under the rule of law.
Craig Collins, Senior Mentor and Lawyer, Leo Cussen Centre for Law
