BBC4's Harry Potter and Yunus Rahmatullah: A strange case of habeas corpus

BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4's legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.

How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.

Potter is proud of English law: "a boon we have given the world". He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679, Bill of Rights 1689 – and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.

He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Jersey, a place for 17th century "extraordinary rendition". There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.

In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment "is something we hope has been consigned to history". The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.

Dishonourable

Unfortunately, within days of Potter's broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.

According to evidence at his Court of Appeal case in 2011, Rahmatullah, a Pakistani captured in Iraq, was handed over to the US authorities by the British SAS. This was followed by his rendition to Bagram in Afghanistan, apparently without the UK being aware of the move. At the time there was a memorandum of understanding in place that the US and Britain would observe the Geneva Convention and international law in its dealings with detainees related to the Iraq war.

'In every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus' – Habeas Corpus Act 1640

According to this agreement the “detaining power” (Britain in Rahmatullah's case) can require the return of its prisoners from the “accepting power” (the US) on demand and without delay. The detaining power shall have full rights of access and the detainees' removal from Iraq should be done only by mutual agreement between the two powers.

This, on the face of it, would give Britain the right and power to demand Rahmatullah's return from Bagram (where he is held without charge or access to full legal rights) – assuming that Britain did not willingly connive in his removal. In 2009 the UK Government accepted that it should have questioned the removal to Bagram. In 2010 a US detaining board said Rahmatullah was “not an enduring security threat” and he should be released.

The argument of his supporters is that Rahmatullah's continued detention is unlawful and the UK Government has standing, thanks to the memorandum, to have him released. The Government argues, however, that it does not exercise sufficient control over him to be subject to a writ of habeas corpus.

Potter points out that the Americans have absorbed habeas corpus into their constitutional law and leaves us with the impression that it has been effective in freeing the prisoners of that other extra-jurisdictional Jersey-style facility in Guantánamo Bay. But that's another story. The legal issue here is whether a writ of habeas corpus would force the UK government to exercise its powers under the memorandum to have Rahmatullah released. In December 2011 the Court of Appeal said yes and issued the writ. It is this position the Government refuses to accept and which it appealed against in the Supreme Court.

Mr Potter sees the parallel between 17th century Jersey and Bagram or Guantánamo. He might well see in Rahmatullah's plight (and that of many others since 2001) a parallel with his tale of 17th century radicals, such as "Freeborn John" Lilburne, and their rendition to Jersey and other places beyond the jurisdiction of the courts and of habeas corpus – but he makes no mention of such modern cases.

The trouble with the Whig interpretation of history is that it is unilinear and stops about 100 years ago. It assumes that the hard fought for and beneficial development of our constitution can never go back from that point, and if anything, things can only get better.

Mr Potter should abandon his rosy view of the evolution of English law and rework his story, accepting the reality: history repeats itself – first as tragedy and then as another tragedy.

This post originally appeared on Alrich Blog http://alrich.wordpress.com/

Materials attached to this post include case links and habeas corpus legislation

• Reprieve has information and resources on the Rahmattullah case here

A pre-"war on terror" British habeas corpus case is that of Hardial Singh in 1983, reported here

Other posts considering historical constitutional issues:
Torture, a history of hypocrisy
Baroness Warsi and the holy alliance to capture the British constitution
Also read The rule of law or bending the rule of law on the A v Home Secretary detention case

Extracts from constitutional materials regarding habeas corpus
Magna Carta Chapter 39
“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”
Potter quoting this uses the modern word “seized” instead of disseised, implying that “no man may be seized” by the authorities. The original “disseised” means rather that estates in property may not be unlawfully taken into possession by the monarch. The barons were rather more interested in protecting property rights and their own freedoms than keeping ordinary people out of bad King John's dungeons. Chapter 39 has been superseded and Magna Carta has no constitutional import today.

Habeas Corpus 1640
This is dealt with in Section VI of An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber. Section VI has been replaced in particular by the Habeas Corpus Act 1679, which, in amended form, remains on the statute books.The 1640 provision reads thus:

VI. Every Person committed contrary to this Act shall have an Habeas Corpus for the ordinary Fees.
And be it alsoe provided and Enacted That if any person shall hereafter be committed restrained of his Libertie or suffer imprisonment [by the Order or Decree of any such Court of Star Chamber or other Court aforesaid now or at any time hereafter having or p[re]tending to have the same or like Jurisdiction power or authoritie to commit or imprison as aforesaid Or by the command or Warrant of the Kings Majestie his Heires or Successors in theire owne Person or by the Command or Warrant of the Councell board or of any of the Lords or others of his Majesties Privy Councell:

That in every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus to be directed generally unto all and every Sheriffs Gaoler Minister Officer or other Person in whose custody the party committed or restrained shall be [and the Sheriffs Gaoler Minister Officer or other p[er]son in whose custody the p[er]ty so committed or restrained shall be shall at the return of the said Writ & according to the command thereof upon due and convenient notice thereof given unto him [at the charge of the party who requireth or procureth such Writ and upon securitie by his owne bond given to pay the charge of carrying back the prisoner if he shall be remanded by the Court to which he shall be brought as in like cases hath beene used such charges of bringing up and carrying backe the prisoner to be alwaies ordered by the Court if any difference shall arise thereabout bring or cause to be brought the body of the said party so committed or restrained unto and before the Judges or Justices of the said Court from whence the same Writ shall issue in open Court and shall then likewise certifie the true cause of such his deteinor or imprisonment and thereupon the Court within Three Court dayes after such return made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said return be just and legall or not and shall thereupon do what to justice shall appertaine either by delivering bailing or remanding the prisoner.

And if any thing shall be otherwise wilfully done or omitted to be done by any Judge Justice Officer or other person aforementioned contrary to the direction and true meaning hereof That then such person so offending shall forfeit to the party grieved his trebble damages to be recovered by such meanes and in such manner as is formerly in this Act limited and appointed for the like penaltie to be sued for and recovered.

Habeas Corpus Act 1679
This granted the right of habeas corpus outside the law terms since prisoners were being held for weeks or months while courts were closed. It also dealt with the loophole regarding Jersey (and other places including Scotland). Section XI says:

And for preventing illegall Imprisonments in Prisons beyond the Seas Bee it further enacted by the Authoritie aforesaid That noe Subject of this Realme that now is or hereafter shall be an Inhabitant or Resiant of this Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede shall or may be sent Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter shall be within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall and that if any of the said Subjects now is or hereafter shall bee soe imprisoned every such person and persons soe imprisoned shall and may for every such Imprisonment maintaine by vertue of this Act an Action of false Imprisonment in any of His Majestyes Courts of Record against the person or persons by whome he or she shall be soe committed detained imprisoned sent Prisoner or transported contrary to the true meaning of this Act and against all or any person or persons that shall frame contrive write seale or countersigne any Warrant or Writeing for such Committment Detainer Imprisonment or Transportation or shall be adviseing aiding or assisting in the same or any of them and the Plaintiffe in every such Action shall have Judgement to recover his treble Costs besides Damages which Damages soe to be given shall not be lesse then Five hundred pounds In which Action noe delay stay or stopp of Proceeding by Rule Order or Command nor noe Injunction Protection or Priviledge whatsoever nor any more then one Imparlance shall be allowed excepting such Rule of the Court wherein the Action shall depend made in open Court as shall bee thought in Justice necessary for speciall cause to be expressed in the said Rule and the person or persons who shall knowingly frame contrive write seale or countersigne any Warrant for such Committment Detainer or Transportation or shall soe committ detaine imprison or transport any person or persons contrary to this Act or be any wayes adviseing aiding or assisting therein being lawfully convicted thereof shall be disabled from thenceforth to beare any Office of Trust or Proffitt within the said Realme of England Dominion of Wales or Towne of Berwicke upon Tweede or any of the Islands Territories or Dominions thereunto belonging and shall incurr and sustaine the Paines Penalties and Forfeitures limitted ordained and provided in the Statute of Provision and Premunire made in the Sixteenth yeare of King Richard the Second and be incapeable of any Pardon from the King His Heires or Successors of the said Forfeitures Losses or Disabilities or any of them.

Times’s ethical options after NotW phone hacking scandal

Rupert Murdoch has promised to “make amends” for the damage caused by the News of the World phone hacking scandal – and he also needs to make amends to the Times newspaper, suffering reputational damage by association. The answer? The new ethical Times – spun off from the News International empire and beyond its mephitic influence.
News International lawyers are no doubt working hard on the plan that would separate the paper from its grubby stable mates – and incidentally take £45m of losses off the company’s books. Short of selling the Times to an oligarch, what are the ethical options?

Form a Trust
This would be the ultimate irony – or perhaps the ultimate revenge on the Guardian, which has brought Murdoch’s empire low with its revelations. For years the Guardian trumpeted its trust status. The Scott Trust, formed in 1936, meant the paper had no shareholders or control by an overweening Murdoch-style dictator. Instead of sale of the Times, why not put it on the same footing as its antagonist, challenging the Guardian’s role as the only ethical beast in the newspaper jungle? There is already a “Rupert Murdoch chair of language and communication” at Oxford. “Murdoch Trust” has a similarly convincing ring to it, pleasingly linking those two words in perpetuity, well after the current unpleasantness has passed (one hopes).
The then Manchester Guardian’s aims were enshrined in a trust deed: that the paper be “be carried on as nearly as may be upon the same principles as they have heretofore been conducted”. For the Times, of course, that would not do – in fact the opposite might be more appropriate: that it “be carried on upon quite different principles from those heretofore obtaining during the 30 years of News International ownership”.
There is a problem with a trust: the rule against perpetual trusts (or rule against inalienability). A trust transfers the beneficial interest of an asset from its owner. But the asset must vest at some point in the future – it must be realized and the trust wound up after a period of “a life in being plus 21 years” in the arcane Common Law formulation for purpose trusts. New rules in the Perpetuities and Accumulations Act 2009 set the term at 115 years for property trusts and those accumulating assets – which the Times is most unlikely to do.

A charity?
The exception to the rule against perpetuities is charities. Unfortunately producing newspapers is not a charitable activity according to the law on trusts (though some might feel that giving employment to journalists is very much a charitable thing to do). Seeking to get round this by giving papers some moral purpose won’t work. This was established in Re Astor’s Settlement Trusts, a 1952 case in which the owners of the Observer sought to create a purpose trust with noble aims: “(i) the maintenance of good understanding between nations; (ii) the maintenance of the independence and integrity of newspapers; and (iii) the protection of newspapers from being absorbed and controlled by combines”. Would that they had succeeded – British journalism might not be in the pickle it is now. But the Astor aims did not benefit individuals, so were not charitable; and nor were they suitable to build a purpose trust around being “void for uncertainty” – not having clear objectives.
If Murdoch sought to set up a non-charitable purpose trust in which “the only beneficiaries are purposes”, who could initiate proceedings to enforce the purpose? Roxburgh J in Re Astor cited Sir William Grant in Morice v Bishop of Durham, 1804: “There must be somebody, in whose favour the court can decree performance” – someone who could make a legal claim against trustees for the benefits of the trust. It is unlikely that the Times readers would count as beneficiaries however beneficial the effect of the excellent articles in that newspaper.
Could the words of Murdoch’s advertisement apologizing for the misdemeanors of the News of the World form a starting point? He wrote: “Our business was founded on the idea that a free and open press should be a positive force in society. We need to live up to this.” He might wish to enshrine such fine sentiments in a trust deed, but it would undoubtedly be considered “void for uncertainty”.

Private company
Even if a trust could be set up it would last only for the “perpetuity period”. The Guardian had a good run as a trust (in reality not a purpose trust despite its high-flown aims) but in 2008 it opted to turn itself into a private company with its board initially made up of members of the old trust and bound by a company constitution with the previous aims. The advantage of going private for the Times would be that it could thereafter pursue its aims in perpetuity – or until the no doubt highly generous Murdoch monetary settlement upon it runs out.
Rather than selling the Times, Murdoch could hand it over to a trusted team of the great and the good. He doesn’t have a great track record on this, however. He promised in 1981 that the Times would have an independent board of such people, made similar promises in 2007 when he was negotiating to buy the Wall Street Journal and also in March 2011 when he offered to spin off Sky News into a separate entity. In the first two cases “his commitment to editorial integrity was swiftly questioned” according to the Financial Times.
This time it has to be serious, with a board comprising weighty and respected figures able to stand up to Murdoch – people with bottom such as John Prescott, a man unlikely to take any nonsense from an over-mighty magnate; or Jemima Khan, recently taken on at the Independent as an associate editor, so certainly having the experience to move up to a more challenging journalistic role – and similarly likely to be more than happy to face down a Murdoch throwing his weight around.
The former MP George Galloway would be another popular choice as member of the board, and the selection of a prince of the realm such as Wills or Harry would add a certain éclat.

Mutualisation
If selling the Times and trust or charitable status are not options, perhaps the paper could go down the John Lewis route with the workers as partners sharing in the success of the enterprise. If this sounds a bit wishy-washy and liberal for the blue-in-tooth-and-claw Murdoch, then maybe the paper could start to show real support for Conservative values and the David Cameron “Big Society” agenda. All it needs to do is sack its journalists, just like at the News of the World – and then ask them to pop in to run the paper on a voluntary basis now and then.

Note: This blogpost first appeared on Alrich's Weblog