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I am bound to say that I am not persuaded that anything would
be achieved by creating, in the case of Mr. Osman, a special
procedure which does not apply to other applicants for habeas
corpus.
As I understand the operation of the Act, unless some
course was adopted which prevented Mr. Osman making an
application it would not be possible, as a matter of law, to
avoid the effect of section 11 (2) (b) and (5) of the Act which
has the result that, once an application is made, the powers
of the Home Secretary are stayed.
Mr. Nicholls disavowed any intention of preventing an
application being made to the court. Rightly, in my
judgment, he took the view that bearing in mind the
application would be one of habeas corpus that is not a course
which would appeal to the court even assuming it had
jurisdiction to take action which had that effect. However,
he submits that once the application is made it should be
subject to a special requirement of leave.
But I
It may be possible, as part of the court's power to
protect itself against having its procedures abused, for an
order or a direction to be made which has that effect.
do not believe that anything would be achieved by making an
order designed to give effect to some form of two-stage
procedure; the sort of procedure which exists in the case of
an application for judicial review. The distinction which I
regard as critical between the position on an application for
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