Wednesday, 4 March 2009

Habeas Corpus and Jersey

Wikipedia defines this as follows:

Habeas corpus  (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
Geoffrey Robertson wrote a book called "The Tyrannicide Brief" (2006) about the trial of John Cooke, the barrister briefed by Oliver Cromwell and his colleagues to prosecute Charles I for high treason and other crimes. After the Restoration of the monarchy, Cooke was himself dragged back to the Old Bailey, tried and convicted of high treason and executed. But two years after John Cooke' s execution in 1660, there was a devious plan to take care of targets  which involved the use of Jersey as a kind of "Guantánamo Bay". These are the details as given by Keith Thompson, Area Legal Counsel for the Pacific , USA:

Despite the blanket amnesty that had been expediently proclaimed in the Act of Indemnity and Oblivion,17 the royalist authorities were mopping up the regicides and sating their desire for vengeance. They dug up the decomposed bodies of Cromwell and others and publicly hanged them again before an enormous crowd. They then started hunting down regicides who had escaped to other countries. Some they kidnapped back to England for execution and others they simply assassinated where they found them overseas. But when the connection with the overthrow of Charles I was harder to prove and the targets were at home in England, they had to go through trial formalities. Clarendon, the Lord Chancellor, wanted to keep the stay-at-home republican diehards in prison indefinitely. But that was a problem because the writ of habeas corpus established by Magna Carta entitled anyone in England to challenge the legality of his detention. And so Clarendon hit on a devious plan.

Robertson's words say it best:

He would keep the 'enemy combatants in custody for ever, but not in England - instead on offshore islands like Jersey and the Isle of Man. Clarendon's device was regarded as despicable at the time - it was one of the reasons for his dismissal, and it led Parliament in 1679 to pass the Habeas Corpus Act, which gave 'the great writ' extra-territorial affect.

The later extension of Habeas Corpus was passed in 1679, and what is interesting is that this is (1) a law passed by the UK Parliament (2) a UK law that applies to Jersey locally - because of its extra-territorial scope. This demonstrates that, on occasion, the UK Parliament can and did legislate for Jersey in local matters - despite what certain legal authorities (notably William Bailhache, but not Sir Philip Bailhache) and politicians have proclaimed to the contrary.

"Habeas Corpus may be directed into Counties Palatine, &c 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."
Links and References:
The Tyrannicide Brief, Robertson, G., Vintage Books, London, 2006, pp 154-155

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