QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE PITCHFORD
|BROWN & WRIGHT||(CLAIMANTS)|
|GOVERNOR OF HER MAJESTY'S PRISON SAUGHTON||(DEFENDANT)|
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MR J LEWIS QC (instructed by the Crown Prosecution Service & the Lord Advocate) appeared on behalf of the DEFENDANT
Crown Copyright ©
Friday, 9th May 2003
"11-(1) Where a person is committed under section 9 above, the court shall inform him in ordinary language of his right to make an application for habeas corpus, and shall forthwith give notice of the committal to the Secretary of State."
Section 11(6) provides:
"In the application of this section to Scotland references to an application for habeas corpus shall be construed as references to an application for review of the order of committal and references to the High Court shall be construed as references to the High Court of Justiciary."
"... And that no causes in Scotland be cognoscible by the courts of Chancery Queen's Bench Common Pleas or any other court in Westminster Hall and that the said courts or any other of the like nature after the union shall have no power to cognosce review or alter the acts or sentences of the judicatures within Scotland or stop the execution of the same..."
That article was considered by this court in R v Commissioner of the Metropolis ex parte Bennett  3 All ER 248, where Rose LJ held that the Divisional Court could not intervene with the execution of a Scottish warrant in England. Therefore, it seems to me plainly to follow that this court has no jurisdiction to review the decision of Sheriff Bell. Rose LJ said at page 254 of that report:
"But it seems to me, on proper analysis, that this court does not have jurisdiction in the present case for two reasons. First, the 1706 Act does not permit it. I am unable to read art XIX of the Act, and in particular the words 'stop the execution of the same', in the limited sense for which Mr Newman contends. The co-existence of separate but equal legal systems which the 1706 Act prescribes must, it seems to me, absent any sign of contrary intention, contemplate the execution of Scottish process unimpeded by the English court."
"The English writ of habeas corpus does not run to Scotland. Before the union of the thrones in 1603 under the Stuarts, Scotland was regarded as a foreign country and was not a dominion of the crown of England. The union of the crowns meant that Scots were no longer regarded as aliens since they bore allegiance to a common sovereign, but union did not extend the prerogative of the English crown to Scotland. Scotland remained a foreign dominion of the prince who succeeded to the English throne, and the union of crowns provided no basis on which habeas corpus could run. The Act of Union 1706, provided for a united Parliament and the continuation of a common King under the Hanovers and their successors, but still did not alter the distinction between England and Scotland for the purposes of the prerogative writs. Scots law was expressly preserved, and it was provided that no cause in Scotland was cognizable in the English courts."