Habeas Corpus, Its Versatility on Both Sides of the ‘Pond,’ and When Right against Remedy Becomes Quixotic

Abstract

This article examines the writ of habeas corpus ad subjiciendum and notes the greater use to which the writ has been put in the United States as compared to England and Wales, as well as an interesting conceptual problem identified in the US case of Hamdi v Rumsfeld. The light shed by this discussion will assist examination of the reasons why habeas corpus ad subjiciendum has become more versatile in the United States than in England. It will be concluded that this difference reflects structural differences across the two jurisdictions, and that the writ in England and Wales – where it will be satisfactorily answered by a showing that someone is in custody pursuant to the order of a court with jurisdiction to confine him – does not need to be expanded beyond its current form, despite the greater American development of the habeas corpus concept.