Brown & Anor v Governor of Her Majesty's Prison Saughton

The English writ of habeas corpus does not run to Scotland. A Divisional Court cannot review or interfere with a Scottish committal or detention decision. Under the Extradition Act 1989, extradition proceedings in Scotland are subject to the Scottish procedure of review, rather than an application for habeas corpus in England. Article XIX of the Act of Union 1706 preserves the separate Scottish jurisdiction and prevents Westminster courts from reviewing or altering acts or sentences of Scottish judicatures.

The claimants were detained in Scotland pending extradition proceedings initiated by the Government of Estonia for drug-trafficking offences. A Scottish sheriff committed each claimant in custody on 29 March 2001. They contended that the committal was defective because it had been made by a sheriff rather than a sheriff principal, and argued that the absence of an English habeas corpus remedy created a jurisdictional lacuna.

The Administrative Court had to determine whether it could issue habeas corpus or otherwise review the Scottish committal and detention.

1. Application rejected. The court held that the application was misconceived and that it had no jurisdiction to review the decision of Sheriff Bell or interfere with proceedings taking place in Scotland.
2. The Extradition Act 1989 applies in both England and Scotland, but provides different procedural vehicles. In England, a person committed under section 9 may apply for habeas corpus. In Scotland, section 11(6) requires references to habeas corpus to be construed as references to an application for review of the committal order, and references to the High Court to mean the High Court of Justiciary.
3. The statutory scheme therefore makes clear that English extradition cases are dealt with in England and Scottish extradition cases in Scotland. The court considered that there was no material practical difference in the protection available in Scotland, but held that the decisive issue was jurisdiction.
4. Article XIX of the Act of Union 1706 reinforces that conclusion. It prevents causes in Scotland from being cognisable by Westminster courts and denies those courts power to review or alter acts or sentences of Scottish judicatures, or to stop their execution. The court applied the reasoning in R v Commissioner of the Metropolis ex parte Bennett [1995] 3 All ER 248.
5. The court also accepted the legal position stated in Rex v Cowle (3 July 1759): the English court could not send a writ of any kind, including habeas corpus, to Scotland. Mr Justice Pitchford agreed with Lord Justice Scott Baker.