The King on the application of Bumju Kim v The Governor of HM Prison Wandsworth
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 21 March 2024 |
| Neutral Citation | [2024] EWHC 645 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No. AC-2024-LON-000172 |
[2024] EWHC 645 (Admin)
THE HONOURABLE Mr Justice Pepperall
Case No. AC-2024-LON-000172
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London WC2A 2LL
Kate O'Raghallaigh (instructed by Hickman & Rose) for the Claimant
Arianna Kelly (instructed by The Government Legal Department) for the Defendant
Hearing date: 17 January 2024
Further submissions lodged: 1 and 2 February 2024
Approved Judgment
This judgment was handed down remotely on 21 March 2024 by circulation to the parties and by release to the National Archives.
There are few rights more important in a free and civilised democracy than that no one should be unlawfully detained by the state. The right not to be falsely imprisoned can be vindicated by the issue of the ancient writ of habeas corpus which requires the detained person to be produced before the court. The law clearly places the onus on the state to justify the prisoner's continued detention and, absent proof of lawful authority, the prisoner must be released.
This case is the second occasion in little over a year upon which a High Court Judge has been moved to criticise His Majesty's Prison Wandsworth for unlawfully detaining prisoners. R (Niagui) v. Governor of HM Prison Wandsworth [2022] EWHC 2911 (Admin), [2023] 4 W.L.R. 2 concerned a prisoner who was acquitted at a trial that concluded after normal court hours on a Friday. Upon his acquittal, there was no lawful basis for Mr Niagui's continued detention but yet he was not released from Wandsworth Prison until shortly before a hearing of his claim for the issue of a writ of habeas corpus at 2 p.m. on the following Monday. The explanation was essentially that the prison was not able to authorise Mr Niagui's release until it had completed its checks and satisfied itself that there was no other authority for his detention. Such checks, it was asserted, could not be properly made until the Monday.
Chamberlain J was troubled about a number of aspects of the case and, at [34], rightly criticised the prison's approach of assuming that further detention was lawful until the contrary was established. As he observed, the question should have been “Can we show that there is a legal authority to detain him?”, and not “Can we show that someone has authorised his release?” See also Rahmatullah v. Defence Secretary [2012] UKSC 48, [2013] 1 A.C. 614, at [41].
Chamberlain J accepted that checks had to be made but stressed that the need to comply with Prison Service instructions and policies was not a lawful ground for continued detention overnight, let alone over a weekend. He said, at [35]:
“When remand prisoners are taken to court, prison staff must ensure either that checks to see whether there are other authorities to detain are carried out beforehand … or, at the very least, that staff are available by telephone and have the records they need to carry out the necessary checks immediately upon acquittal.”
Chamberlain J was also critical of the offhand way in which the solicitor's enquiries were dealt with. He added, at [36]:
“I understand the resource pressures on prisons, but a complaint by a solicitor that a prisoner is being unlawfully detained demands a substantive response as a matter of urgency, even over the weekend.”
Finally and prophetically, Chamberlain J said, at [37], that the evidence before him provided little reassurance that the events would not be repeated.
On 16 January 2024, Bumju Kim pleaded guilty at the Westminster Magistrates' Court to an offence of battery contrary to s.39 of the Criminal Justice Act 1988. He was sentenced at 11.41 a.m. that day to ten weeks' imprisonment. Taking into account the time that Mr Kim had spent on remand, it is common ground that he should then have been released. Instead, Mr Kim was put on a prison bus and taken back to Wandsworth Prison.
That evening, Mr Kim was told that it might take until 18 January for the paperwork to be sorted out. His solicitor, Bartholomew Dalton, formally complained that his client's continued detention was unlawful:
8.1 At 6.28 p.m., Mr Dalton spoke to an employee at the prison who refused to put him through to, or even provide the name of, the duty governor. He was told to email the Offender Management Unit (the “OMU”) but the employee could not confirm whether they would respond that day.
8.2 Mr Dalton duly emailed the OMU at 7.16 p.m. and put them on notice that, should Mr Kim not be released, he would be seeking an out-of-hours hearing before a High Court Judge for the issue of a writ of habeas corpus. The email included the word “URGENT” in capital letters in the subject line and was marked as being of high importance. Nevertheless there was no response.
8.3 Mr Dalton called the prison again at 8.15 p.m.. He describes the call in his second statement:
“The officer … initially refused to provide any details for the duty governor, but when it was explained that we would be making an application to the High Court should I not be able to speak to the duty governor and resolve the issue he said he would try and speak to them. I was then put on hold so that he could speak to a duty governor. On his return I was told that the duty governor was not able to speak to me and nothing could be done by the prison until the morning of 17 January 2024, as the OMU had finished work at 17:00 and they process all releases. I reiterated that Mr Kim's ongoing detention [was unlawful] and we would have no choice but to make [an application for the issue of the writ of habeas corpus] should we not be able to resolve the release with the prison, the officer said that the duty governor had said that we would need to do what we have to do, but that they would not be able to do anything until tomorrow without a court order. I eventually persuaded the officer to provide a name and email address for the duty governor. I then forwarded my earlier email to the OMU to the duty governor [Stacey James] at 20:30 and invited [her] to reconsider her decision to avoid any unnecessary hearings.”
8.4 In one final attempt to get the prison to engage with him, Mr Dalton emailed Governor James at 8.30 p.m.. Again, he included the word “URGENT” in capital letters in the subject line and marked the email as being of high importance. Again, there was no response.
I was the duty judge that evening. At 2.23 a.m. on 17 January 2024, I gave leave for the issue of a writ of habeas corpus and ordered the Governor of Wandsworth Prison to produce Mr Kim before me at the Royal Courts of Justice at 11 a.m. unless he had been released from custody before that time.
Mr Dalton called the prison again at 9.14 a.m. but the member of staff answering his call refused to put him through to either the duty governor or the OMU.
Mr Kim was released on 17 January but not until after the 11 a.m. deadline. In breach of my order, the Governor failed to produce Mr Kim before the court. Indeed, the Governor neither appeared nor was represented before me. Instead, lawyers from the Government Legal Department attended court and took a noting brief having first communicated their instructions to Kate O'Raghallaigh, who appeared for Mr Kim and was able to relay the Governor's position to the court. I then ordered the Governor to file and serve evidence by affidavit by 4 p.m. on 25 January 2024 explaining, first, the grounds, if any, for Mr Kim's detention between the sentencing hearing on 16 January and his release; and, secondly, the reasons why the Governor had failed either to release Mr Kim or produce him before the court by 11 a.m. as ordered and as commanded by the writ of habeas corpus.
The Governor failed either to comply with that order or seek a prospective extension of time. Accordingly, on 26 January 2024 I made a further order requiring the Governor to provide the required affidavit evidence by 4 p.m. on 2 February 2024. On this occasion, my order was specifically directed to the Governor, Katie Price, and endorsed with a penal notice....
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