While we are on the subject of confusion about habeas corpus in Scots law, Scottish Law Commissioner Professor Gerry Maher QC reminds us of the curious case of Wan Ping Nam v v Minister of Justice of the German Federal Republic 1972 JC 43.
Wan Ping Nam was a Chinese seaman who claimed to be a British subject. While serving on a German ship passing through Scottish waters, he was arrested in connection with the death of a fellow crewman and held in custody at Barlinnie while Germany commenced extradition proceedings to have him tried in Bremen, where the ship was registered. The law as it then stood laid down that British subjects could not be extradited to Germany, while the Extradition Act 1870, applicable throughout the UK, provided that a person held in prison awaiting possible extradition could apply for a writ of habeas corpus to procure his release. The question was how to apply this provision in Scotland where, as Lord Justice General Emslie confirmed, the writ of habeas corpus "does not run … and is wholly unknown to our law". Wan Ping Nam was granted the right to seek liberation instead by way of a petition to the nobile officium of the High Court of Justiciary, this being necessary to give effect to the plain intention of the legislature in the 1870 Act.