A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. A writ of habeas corpus against Dr Barnardo at the suit of the boy’s mother was refused by Mathew J some three months after the boy had been handed over to the American. The Divisional Court did granted the writ some six months later on a renewed application, and this decision was affirmed by the Court of Appeal.
Held: The defendant’s appeal failed. Lord Herschell said that a writ of habeas corpus should not be ‘used as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it . . If . . it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen’s Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. Now, it is impossible to read the judgment of the Lord Chief Justice without seeing that he did entertain such a doubt, and that he was not prepared upon the affidavits to accept as conclusive the statements of the appellant… I must not be understood as indicating that I think the story told by the appellant is untrue. But, as the matter is to undergo further investigation, it would obviously be improper to enter upon any discussion of the statements contained in the affidavits, or to express any opinion upon them.’
Lord Herschell
[1892] AC 326
England and Wales
Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Ex parte Mwenya CA 1959
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.470683
