Introduction

‘It manifestly appeareth, that no man ought be imprisoned but for some certain cause: and these words, Ad subjiciend’ Et recipiend, prove that cause must be shewed: for otherwise how can the Court take order therein according to Law’ (Edward Coke, The Second Part of the Institutes of the Laws of England). These are the words of Sir Edward Coke, in his support for the Petition of Right 1628, a landmark English constitutional document presented to King Charles I by Parliament, demanding an end to (among other things) arbitrary imprisonment. The Petition of Right was a crucial precursor to the famous Habeas Corpus Act 1679, an act that forms the bedrock of due process and the right to a fair trial in English law.

However, in recent months fundamental legal concepts such as this have been under assault, particularly the right to a fair trial and right to preservation of liberty. An under reported element of the legal assault has been the twenty-four Palestine Action activists who are currently on remand and have been on remand in excess of the UK’s standard six-month pre-trial custody limit. Worryingly this extension beyond the six-month limit is becoming ever more commonplace, with a freedom of information request made in August 2022 by criminal justice watchdog Fair Trial revealing that ‘almost 1,800 people [had been] in pre-trial detention for over a year’ at that time.

It is evident from this, then, that this issue exists beyond the Palestine Action context. Yet the Palestine Action prisoners offer an excellent viewpoint to examine the phenomenon. This post seeks to trace the constitutional foundations of habeas corpus, and the preservation of liberty, apply it to this contemporary issue and provide some commentary on the constitutional implications of these developments.

Contextualising the Palestine Action Prisoners

The most recent phase of the Israel-Palestine conflict has permeated global discourse since the October 7^th attack. Kumar, Neogi, Tripathy and Pandey (page 86) state how Gaza has accelerated shifts in international relations, in particular, the growth in non-state actors pushing for humanitarian interventions, including a ceasefire. Within the UK, Palestine Action has emerged as a focal point for debates on dissent and state power, situated at the intersection of protest, criminal justice and executive authority.

Although several individuals currently remanded were arrested before the proscription of Palestine Action, as of December 2025, twenty-nine Palestine Action protestors are in prison. All were remand prisoners and not convicted. Six are currently being tried and seven were on hunger strike, demanding immediate bail. Four Prisoners were remanded since November 2024 for non terrorism-related offences to the Elbit Systems site in Bristol. As of January 2026, they have been held on remand, without bail, for thirteen months. Their trial is not due to start until April 2026. Another four have been remanded since July 2025, some six months’ remand, for damage to Aircraft at RAF Brize Norton, with a trial due to be held in January 2027.

Origins and Purpose of Habeas Corpus

Habeas corpus is a centuries‑old common law remedy designed to test the legality of detention by requiring the jailer to ‘have the body’ brought before a court. It remains central to the modern remand system as a residual, often urgent, safeguard against unlawful or arbitrary imprisonment.

The roots lie in medieval English royal justice, with historians tracing recognisable antecedents to the Assize of Clarendon 1166, rather than treating Magna Carta as its sole source (Paul Haliday, Habeas Corpus: From England to Empire, 2010, 11-39). Clause 39 of Magna Carta nonetheless gave the classic formulation that no freeman was to be imprisoned save, ‘by the lawful judgment of his peers or by the law of the land’ (Magna Carta 1297, cl. 39) which later generations read as the animating principle behind habeas corpus. Some legal scholars even going so far as to term habeas corpus ‘the second Magna Carta’ (Blackstone’s Commentaries).

By the seventeenth century the writ had become a key weapon in constitutional struggles between Crown and Parliament, used to challenge imprisonment by royal prerogative and other executive authorities. The Habeas Corpus Act 1679 codified and strengthened it by imposing strict time limits and procedural duties on the prison service and judges (William Duker, A Constitutional History of Habeas Corpus, 1980, 12-95).

 Modern function and procedure

In modern times, habeas corpus is a summary procedure whereby a court orders the detainer to justify the legal basis for a person’s confinement, with release being appropriate if no sufficient cause is shown. Part 87 of the Civil Procedure Rule preserves this as a flexible, urgent jurisdiction: applications may be made to a single judge, transferred to a Divisional Court, or converted into judicial review where appropriate, with the return required to state all causes of detention.

Contemporary appellate case law confirms that the writ is now a residual remedy, unnecessary where an effective right of appeal or statutory challenge exists, but still available where no such avenue, or no timely avenue, is realistically open. In practice, it continues to secure the release of individuals whose remand or continued detention has become unlawful, as illustrated by recent High Court grants of the writ in cases of miscalculated remand time.

Constitutional purpose and importance

Habeas corpus embodies the principle that physical liberty is the default, and detention requires ongoing legal justification. Its importance lies in three features: it is individualised, rapid, and adversarial, compelling the executive to defend detention in open court rather than leaving liberty to administrative discretion.

Habeas corpus plays an important role where there has been a structural misalignment between the courts and the prison service. In R (Niagui) v Governor of HM Prison Wandsworth, the claimant was acquitted on a Friday but remained in custody until shortly before his habeas corpus hearing the following Monday. A year later, in R (Kim) v Governor of HM Prison Wandsworth, another prisoner was similarly detained beyond his proper release date. In Kim, Pepperall J expressed clear frustration at the prison’s internal procedures, which failed to escalate and resolve the issue with sufficient urgency, making a habeas corpus application necessary. Taken together, these cases illustrate how excessive bureaucracy and inadequate training within prisons can expose individuals to unlawful detention for no reason other than institutional and structural failings.

As a result, the writ plays a structural role in maintaining the separation of powers, reinforcing judicial control over coercive state power and functioning as a visible symbol that no one, including police, prison authorities, or ministers, is above the law. Its influence is reflected in other constitutional systems, including the United States, where specific constitutional text protects the privilege against suspension save in limited emergencies.

 Suspension, Erosion and Abuse

Historically, formal suspension of habeas corpus has tended to coincide with claims of existential crisis, such as insurrection, war, or terrorism. In the United Kingdom and elsewhere, such suspensions and quasi‑suspensions have often been justified by reference to national security yet have disproportionately impacted unpopular, racialised, or politically stigmatised groups. More insidious than outright suspension is the functional erosion of the remedy through control orders, preventive detention powers, and closed material procedures that reduce the ability of detainees to test the factual basis of their confinement in open court. These developments illustrate how the forms of habeas corpus can be preserved while its substance is hollowed out, transforming a classic safeguard of liberty into a procedural façade that legitimates, rather than restrains, coercive state action.

The Framework of Liberty: International law, CTRs and Habeas Corpus        

Dicey (in Law of the Constitution, 1924, 193-5) famously located the protection of liberty not in abstract declarations of rights, but in ordinary legal processes, with habeas corpus functioning as a central constitutional safeguard against arbitrary detention. Constitutional development now finds this right, adduced by Dicey, codified within the human rights provisions. Article 5 of the ECHR secures an individual’s right to liberty and security, including to pre-trial release. In Stögmüller, the ECHR ruled that ‘Article 5 (3), for its part, refers only to persons charged and detained.’ Both the State and the Court, as an organ of the state, owe persons detained this obligation. For Dicey, the constitutional force of habeas corpus lay in its immediacy and its resistance to administrative discretion. Liberty was secured not by executive assurances, but by the ability of the courts to demand justification for detention without delay.

Contemporary remand practice marks a departure from this Diceyan constitutionalism. Domestically, the courts have discretion to grant bail. Section 4(1) of the Bail Act 1976 grants the right to bail, save for circumstances outlined in Section 1. Common objections to bail are a risk of failing to surrender, risk of committing further offences, and risk of obstruction of justice, although other factors can also be considered. While the Bail Act 1976 formally establishes a presumption in favour of liberty, the introduction of Custody Time Limits (CTLs), through The Prosecution of Offences (Custody Time Limits) Regulations 1987, a Statutory Instrument made under the authority of the Prosecution of Offences Act 1985, has crystalised the terrain from one of inherent rights to one of procedural compliance. CTLs are an attempt to balance the situations where it may be preferrable to have an individual remanded whilst preventing arbitrary detention. To be granted an extension beyond the statutory six-month limit, the prosecution is required to prove, to a civil standard, that both conditions under 22(3) of the Prosecution of Offences Act 1985 are satisfied:

       (a) that the need for the extension is due to—

              (i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;

              (ii) a postponement which is occasioned by the ordering by the court of separate trials in the               case of two or more accused or two or more offences; or

             (iii) some other good and sufficient cause; and

       (b) that the prosecution has acted with all due diligence and expedition.

The test of ‘good and sufficient cause’ and ‘due diligence and expedition’ are deliberately indeterminate, and disperse responsibility across procedural stages. In R v Manchester Crown Court, the Court ruled that ‘It is neither possible nor desirable to attempt to define what may or may not amount to good and sufficient cause in any given case’. The due diligence and expedition test has though been helpfully defined by the court. Lord Bingham opined that ‘The court will of course have regard to the nature and complexity of the case, the extent of preparation necessary, the [procedural] conduct of the defence, the extent to which the prosecutor is dependent on the co-operation of others outside his control and other matters directly and genuinely bearing on the preparation of the case for trial.’

As the test is vague enough to accommodate the complexities of administering the criminal justice system, it provides a useful cloak for state authorities to apply for continual deprivation of liberty. There are no statutory limits to the number of times that an extension can be applied for or granted, though the Courts have opined that extensions to CTRs should be brief, such as a 3-month extension, to keep the mater under review of the Court. And even if a CTL extension has been refused, bail can still be refused if there are exceptional circumstances to justify a continuation of remand. As a result, detention may persist lawfully even where it has become substantively punitive in effect.

This proceduralisation of liberty has significant consequences for habeas corpus. As confirmed in ex p Cheblak, habeas corpus is confined to cases where detention is ultra vires, while challenges grounded in delay, proportionality or procedural unfairness are redirected to judicial review. The effect is to transform habeas corpus from a living constitutional restraint into a residual remedy, incapable of addressing the systemic normalisation of prolonged remand.

It is not being suggested that the detentions in respect of Palestine Action are ultra vires. Rather it seems to be the case that the Palestine Action example shows the current CTL settlement is in direct conflict with the historic constitutional framework. The current CTL provisions are therefore in need of amendment, to ensure that any custody extensions are not disproportionally applied, and see a reversion in the back to the constitutional bedrock. 

Commentary & Conclusion

The erosion of habeas corpus in England has not been heralded by a formal suspension of the underlying writ, rather by a slow chipping away of liberty so it becomes a sterile question of administrative process. The Palestine Action remand prisoners stand as a vivid symbol of this change. They have revealed how constitutional guarantees can be hollowed out while their forms are left intact. Historically, habeas corpus was synonymous with the concept that physical liberty is the default condition and that the state must promptly and publicly justify any departure from this. Now, however, that principle is squeezed through extensions to Custody Time Limits where the tests of ‘good and sufficient cause’ and ‘due diligence and expedition’ are purposefully indeterminate, dispersing accountability across prosecutors, courts, and administrative systems. In this landscape, habeas corpus survives as a residual remedy, formally available yet structurally ill‑suited to confronting the routine normalisation of prolonged pre‑trial detention. Yet the philosophy that inspired the writ endures in the minds of society.

The Palestine Action prisoners have therefore brought to the fore the ongoing erosion of constitutional cornerstones. Individuals have been held for many months beyond the standard six‑month pre‑trial custody period, with trials delayed into distant future dates and scant public explanation as to why liberty must yield for so long before guilt is proven. The introduction of CTLs was theoretically a safeguard limiting pre-trial custody by demanding judicial oversight. Nonetheless, as custody can be extended, under an open-ended legal test, renders this protection almost toothless. Procedurally, they are bureaucratic and opaque. Yet, as a safeguard against unlawful detention, habeas corpus remains of enduring importance. Its erosion constitutes an affront to both the English people and the constitution. To restate, it is not the case that the Court is acting beyond its remit in applying CTLs, but rather that the decision to do so in an opaque way frustrates an individual’s right to liberty.

In this sense, the Palestine Action cases expose not an extraordinary emergency but the ordinariness of constitutional erosion. Habeas corpus retains immense symbolic power even where its procedural function has been subsumed into the judicial review framework. The spectacle of unconvicted Palestine Action activists held for extended periods, in circumstances where the reasons for continued detention are not always clear and the pathways to challenge it are complex, is an affront to the historic understanding that no person should be imprisoned save by clear law, promptly and openly applied. It illustrates how a constitutional safeguard can be respected in name yet undermined in substance and is indicative of a profound retreat from orthodox understanding of the constitution. This should be troublesome, not only to those sympathetic to Palestine Action, but anyone who views habeas corpus as a bedrock of the English constitutional tradition.

Joel Hames is a trainee Barrister at the Institute of Professional Legal Studies and a Member of the Inn of Court of Northern Ireland.

Emma-Jane Faulkner is a trainee Barrister at the Institute of Professional Legal Studies and a Member of the Inn of Court of Northern Ireland.

(Suggested citation: J. Hames and E-J. Faulkner, ‘Frustrating Liberty: Habeas Corpus, the Right to Trial, and Palestine Action Remand Prisoners’, U.K. Const. L. Blog (8th February 2026) (available at https://ukconstitutionallaw.org/))