Case: The King v Secretary of State for Home Affairs; Ex parte O'Brien (1923) 2 KB 361
Outcome: considered
primary authority on which Mr Hicks relies is the The King v Secretary of State for Home Affairs; Ex parte O'Brien (1923) 2 KB 361, a decision of the English Court of Appeal. In that case, the habeas corpus application was brought against the Secretary of State for Home Affairs seeking the applicant's release from detention in the Irish Free State, which had been ordered by the Home Secretary. Mr O'Brien had been arrested in London under the order (which was later found to be invalid) and was conveyed to Dublin where he was interned. There was an 'agreement' between the Home Secretary and the Irish Free State government that if an advisory committee appointed by the Secretary of State reported that Mr O'Brien ought not to have been interned, then the Irish Free State government would release him. In that case, the application for habeas corpus was directed not to the Irish authorities who had custody of Mr O'Brien, but to the British Home Secretary. The Court of Appeal held that although the Home Secretary had lost legal control of the applicant's body by surrendering Mr O'Brien to the Irish Free State government, the application was properly made against him. This was because doubt remained as to whether the Home Secretary had sufficient de facto control to justify the issue of the writ so that the question of control might be definitely determined on the return of the writ. The rule nisi was made absolute. One important circumstance in that case was that there was an inconsistency in the material before the Court as to whether the Home Secretary had in fact sufficient power or control over Mr O'Brien. In Parliament, he had made statements which gave the impression that he had not lost control over persons who, by his orders, had been interned in the Irish Free State. In contrast, on his affidavit before the court, the Home Secretary swore that the Governor of the prison in Ireland was an official of the Free State government and was not subject to his orders or those of the British government. In the reasons for judgment, in relation to the question of custody and control, their Lordships commented on the nature and degree of control necessary to provide a foundation for the issue of a writ of habeas corpus. Counsel for Mr O'Brien argued that it was enough to refer to the admission by the Home Secretary in the House of Commons that he had agreed with the Irish Free State government for the return of Mr O'Brien if his internment should be held to be unauthorised. It was also pointed out that, in view of the Home Secretary's admission, the question as to whether he had in fact sufficient control to secure release was one which could only be determined on the return of the writ. In reference to the question of the degree of control necessary for grant of the writ, Bankes LJ said at 381: '... it leaves the question in doubt of how far, if at all, by arrangement with the Free State Government the body of the applicant is under the control of the Home Secretary. This question cannot, I think, be satisfactorily disposed of unless the rule is made absolute which will give the Home Secretary the opportunity, if he decides to take advantage of it, of making the position clearer than it appears to be.' (Emphasis added) Scrutton LJ said at 391-392: 'I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various higher authorities have used different words. Lord Herschell's language is "custody, power or control"; Lord MacNaghten's "under control or within reach"; Lord Halsbury's "wrongful detention by himself or his agent"... There is no exact evidence as to the arrangement, except the statement of Mr Bridgeman in the fifth paragraph of his Affidavit, but the Attorney-General told us the "arrangement" was oral . ' (Emphasis added) The above indicates that an oral 'arrangement' may be sufficient to constitute control. This is considerably less than a requirement of custody. The Court made the rule absolute in order to consider the nature of the arrangement. The importance of evidence to a determination was a point also stressed by Atkin LJ at 398.