Pragmatism and Theory in English Law - College of Social Sciences ...

114 The Weaknesses of the Pragmatic Tradition
charges would eventually be preferred. Lord Widgery
refused to issue the writ. Whether the applicant was illegally
detained or not, he said, was immaterial. The issue of
the writ was discretionary, and he exercised his discretion
by refusing to issue it. The sole ground for this remarkable
decision was that the police could regularise what was an
irregular situation at any moment by charging the applicant;
so that the issue of the writ could be immediately rendered
a brutem fulmen. Here was the very apotheosis of
pragmatism. An illegal detention could at any time be converted
into a legal detention, so there was no point in deciding
if it was illegal, or condemning it and granting redress if
indeed it was so found.
I confess that I was appalled at this decision, and I
remain deeply shocked at its implications. The Lord Chief
Justice of England had in effect told the police that they
could commit such an illegality without redress by the
remedy extolled above all others for its effectiveness by our
traditional constitutional lawyers. It is not surprising that
such police action later became quite commonplace, though
of course one does not know to what extent this decision
actually influenced police practice. Today the position has
been completely changed by the very detailed provisions as
to detention without charge in the 1984 Act, but that does
not affect the point I want to make. What concerned me
was the total failure to ask about the purposes and rights
which the writ of habeas corpus was designed to serve, or at
least could be made to serve in this kind of situation.
Obviously, one function which it could have served would
have been to require the police to lay charges as soon as
possible, and not to detain a suspect for questioning without
charge, illegally as it was then thought. Refusing the writ in
such a case was an open invitation to the police to violate