Chapter 7 Notes on key legislation

Discretion and deference

Habeas Corpus Act 1640

  • This Act expanded the writ of habeas corpus (‘that you produce the body’), originally developed by the courts.
  • Any person detained by an official or the government can avail of this writ, which constitutes an order to the official or the government to explain on what basis the person is detained.
  • If the person is being unlawfully detained, the court can order his release.
  • Section VIII gives an example of a resultant discretion: Judges are authorized to ‘do what to Justice shall appertain, either by delivering, bailing or remanding the Prisoner’.
  • The rest of the Act deals with the abolition of various courts outside the common law.
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