Administration of Justice (Prerogative Writs) Act 1978

[3 July 1978]

[preamble and words of enactment omitted]

Writ of habeus corpus; application

1 (1) An application for a writ of habeas corpus ad subjiciendum (hereinafter referred to writ of habeas corpus") shall be made to the Supreme Court, except that—

(a) during the vacation of the Supreme Court or at any time when no judge is sitting in court, it may be made to a judge otherwise than in court; and

(b) in cases where the application is made by or on behalf of a person under sixteen years of age it must be made in the first instance to a judge otherwise than in court.

(2) An application for a writ of habeas corpus may be made ex parte and subject to sub section (3) must be supported by an affidavit sworn by the person restrained setting out the na ture of the restraint.

(3) If the person restrained is unable for any reason to swear the affidavit required by subsection (2), the affidavit may be made by some other person on his behalf but must state that the person restrained is unable to swear the affidavit himself and for what reason.

Writ of habeus corpus; issue

2 (1) If the Supreme Court or judge is satisfied on an application for a writ of habeas cor pus that a prima facie case of unlawful confinement or restraint has been shown he shall order the writ to issue, shall fix the date on which it shall be returnable and may give directions re quiring its service on persons other than the person against whom it is directed.

(2) A writ of habeas corpus shall be served personally on the person against whom it is directed and on such other persons as the Supreme Court or judge has directed that it should be served:

Provided that if it is not possible to serve the writ personally on the person against whom it is directed it must be served by leaving it with a servant or agent of such person at the place where the person restrained is confined or restrained:

And provided further that where it is not possible to serve it personally on another person on whom the judge has directed that it shall be served then it shall be sufficient if it shall be left at his place of business or residence.

Release on bail

3 The Supreme Court or a judge at any time after a writ of habeas corpus has been di rected to issue may, after hearing the Attorney General, order the release of the person confined or restrained on bail subject to such security or securities as is thought fit.

Open court

4 Any hearing on the return of a writ of habeas corpus shall be in
open court:

Provided that—

(a) in the case of the person restrained being under sixteen years of age the Supreme Court may order the hearing to be in private; and

(b) in the interest of justice, of defence or public order the Supreme Court may order the hearing to be in private or may limit the admission of the public in the court and its environs.

Appeals; habeus corpus

5 (1) Subject to subsection (2) an appeal shall lie to the Court of Appeal, in any proceedings upon application for habeas corpus, against an order for the release of the person restrained as well as against the refusal of such an order.

(2) No appeal shall lie from an order made under section 2 directing the issue of a writ of habeas corpus.

(3) An appeal against an order for the release of a person detained shall not affect the right of the person restrained to be discharged in pursuance of the order of the Supreme Court:

Provided that if the Attorney General immediately after the order is made gives notice that he intends to appeal, the Supreme Court may make an order providing for the detention of the person restrained or directing that he shall not be released except on bail which may be granted by the Supreme Court subject to such securities as it may require, so long as any appeal is pending.

No application on same grounds unless fresh evidence

6 Notwithstanding any provision where an application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that per son on the same grounds unless fresh evidence is adduced in support of the application.

Act applies whether civil or criminal application

7 This Act shall apply to all applications for writs of habeas corpus whether civil or crimi nal.

Certain writs abolished

8 The writs of habeas corpus ad testificandum and ad respondendum are abolished.

Prerogative writs no longer issue; information in the nature of quo warranto abolished

9 (1) The prerogative writs of mandamus, prohibition and certiorari shall no longer be is sued.

(2) Informations in the nature of quo warranto are abolished.

Orders of mandamus, prohibition and certiorari

10 (1) In any case where the High Court in England would issue an order for mandamus requiring an act to be done, or an order of prohibition prohibiting any proceedings or matter, or an order of certiorari removing any proceedings or matter into the High Court for any purpose, the Supreme Court may make an order requiring the act to be done, or prohibiting or removing the proceedings or matter, as the case may be.

(2) Such orders shall be called respectively orders of mandamus, of prohibition and of certiorari.

(3) An application for an order referred to in subsection (1) shall by way of origi nating summons:

Provided that unless the Supreme Court for special reasons otherwise orders the hearing shall be in open court.

(4) An application for an order of mandamus shall be made within two months of the day on which the refusal to act took place; an application for an order of certiorari shall be made within six months of the proceedings the subject of the complaint:

Provided that the Supreme Court may for special reason extend either of such periods.

Sentence may be varied on certiorari

11 (1) Where a person who has been punished for an offence applies to the Supreme Court for an order of certiorari and the Supreme Court determines that the trial court had no power to award the punishment, the Supreme Court may, instead of quashing the conviction, amend it by substituting for the punishment awarded any punishment which the trial court had power to award.

(2) Any sentence of imprisonment passed by the Supreme Court by virtue of this sec tion shall, unless the Supreme Court otherwise directs, begin to run from the time when it would have begun to run if passed by the trial court; but in computing the term of the
sentence any time during which the offender was at large after being admitted to bail, shall be disregarded.

No certiorari where appeal lies under Criminal Appeal Act 1952

12 Where notice of appeal could be given under the Criminal Appeal Act 1952 [title 8 item 87] in respect of any conviction, sentence, order or other decision of a court of sum mary jurisdiction arising out of criminal proceedings before such a court, no proceedings by way of an order of certiorari shall be entertained by the Supreme Court in re spect of, or in connection with, the criminal proceedings.

Appeals

13 (1) An appeal shall lie to the Court of Appeal against any order granting or refusing an order referred to in section 10(2).

(2) The bringing of an appeal shall not operate as a stay of proceedings resulting from the making or the refusing of the order appealed against unless the Supreme Court or the Court of Appeal so orders.

Rules

14 (1) The Chief Justice shall have the same power to make rules in respect of proceedings under this Act as he has under section 62 of the Supreme Court Act 1905 [title 8 item 1].

(2) Section 6 of the Statutory Instruments Act 1977 [title 1 item 3] shall not apply to rules made under this section unless they impose fees in which case they shall be subject to af firmative resolution procedure.

Repeal and amendment

15 [omitted.]

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Bermuda Consolidated Legislation

Administration of Justice (Prerogative Writs) Act 1978