Part 57 – Habeas Corpus

Scope of this Part

57.1

1. This Part deals with applications for the issue of a writ of Habeas Corpus and proceedings upon such a writ.

 Application for issue of writ of Habeas Corpus

57.2

1. An application for the issue of a writ of Habeas Corpus ad subjiciendum must be made to the court.
2. An application under paragraph (1) may be made without notice but must be supported by evidence on affidavit.
3. Such evidence must be given by the person restrained stating how that person is restrained.
4. If the person restrained is not able to make the affidavit it may be made by another person on that person’s behalf and must state why the person restrained is not able to make the affidavit.
5. The application must be heard in open court unless it is made on behalf of a minor when it must be heard in chambers.

 Power of court

57.3

1. The court may –
   1. adjourn the application and give directions for notice to be given to –
      1. the person against whom the issue of the writ is sought; and
      2. any other person as the judge may direct; or
   2. forthwith make an order for the writ in Form 22 to issue.
2. The court may also order that the person restrained be released.
3. An order under paragraph (2) is sufficient warrant to any person for the release of the person under restraint.
4. On making an order for the writ to issue the court must give directions as to the date, time and place of hearing.

Service of writ

57.4

1. The general rule is that the writ must be served personally on the person to whom it is directed.
2. If it is not possible to serve that person personally or if that person is the keeper of a prison or other public official, the writ may instead be served personally on a servant or agent of the person to whom it is directed at the place where the person restrained is confined or restrained.
3. If the writ is directed to more than one person it must be served on the person first named and copies served on each of the other persons named in accordance with paragraph (1) or (2).
4. Each person served must also be served with a —
   1. copy of the evidence filed under rule 57.2 (2); and
   2. notice in the form included in Form 22 of the date, time and place at which the person restrained is to be brought and containing a warning that in default of compliance with the writ proceedings for committal may be taken.

Return to writ

57.5

1. Each person served must endorse on or annex to the writ a return stating each cause of detention of the person restrained.
2. The return may be amended or another substituted with the permission of the court.

Powers of court on hearing writ

57.6

1. On the date fixed for the person detained to be brought before the court, the court must make such orders as are just and, in particular, may give directions as to the manner in which any claim for compen­sation is to be dealt with by the court without requiring the issue of any further process.

Bringing up prisoner to give evidence, etc.

57.7

1. An application for –
   1. a writ of habeas corpus ad respondendum;
   2. a writ of habeas corpus ad testificandum; or
   3. an order to bring up a prisoner to give evidence otherwise than by writ of habeas corpus; may be made without notice to a judge in chambers but must be supported by evidence on affidavit.