Cox v Hakes: HL 5 Aug 1890

No Appeal from Order granting Habeas Corpus

Where a person has been discharged from custody by an order of the High Court under a habeas corpus the Court of Appeal has no jurisdiction to entertain an appeal.
So held by Lord Halsbury L.C. and Lords Watson, Bramwell, Herschell, and Macnaghten, Lords Morris and Field dissenting.
A clerk having been sued in an Ecclesiastical Court for offences against the ritual of the Church and pronounced guilty of contempt and contumacy, a writ de contumace capiendo was issued, and he was arrested and imprisoned. A rule nisi for a habeas corpus having been granted the Queen’s Bench Division made the rule absolute and the clerk was discharged from custody. The Court of Appeal having reversed the order making the rule absolute :-
Held: The appeal to the Court of Appeal was not ‘in a criminal cause or matter’ within s. 47 of the Judicature Act 1873; but that no appeal lay to the Court of Appeal under s. 19 from an order discharging a prisoner under a habeas corpus.
The decision of the Court of Appeal (20 Q. B. D. 1) reversed, and the
decision of the Queen’s Bench Division (19 Q. B. D. 307) restored on the
above ground.
The ‘basic principle’ that courts should not impute to the legislature an intention to interfere with fundamental rights leads to a rebuttable presumption that Parliament did not intend, retrospectively, to change rights and obligations.
Lord Herschell considered the construction of legislation: ‘It is not easy to exaggerate the magnitude of this change; nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involve this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.’
Lord Field said: ‘Restitutio in integrum is the right of every successful appellant’. An appellant who has satisfied a judgment for the payment of money is entitled, upon the judgment being reversed on appeal, to repayment of the money he or she has paid, with interest.
Lord Halsbury said: ‘For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody. If release was refused, a person detained might make a fresh application to every judge or every Court in turn, and each Court or Judge was bound to consider the question independently and not to be influenced by the previous decisions refusing discharge. If discharge followed, the legality of that discharge could never be brought in question. No writ of error or demurrer was allowed.’

Lord Field, Lord Halsbury, Lord Herschell
(1890) 15 AC 506, (1890) 60 LJQB 89, (1890) 15 App Cas 506
England and Wales
Cited by:
CitedThe Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
CitedSamuel Knowles, Junior v United States of America and Another PC 24-Jul-2006
(The Bahamas) The respondent sought the extradition of the appellant to face drugs charges. The appellant said that if extradited, he would not receive a fair trial, having been declared publicly by the US President to be a drugs ‘kingpin’.
Litigation Practice, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.199438