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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kim, R (On the Application Of) v Governor of His Majesty's Prison Wandsworth [2024] EWHC 645 (Admin) (21 March 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/645.html Cite as: [2024] 4 WLR 34, [2024] WLR(D) 143, [2024] EWHC 645 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London WC2A 2LL |
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B e f o r e :
____________________
THE KING on the application of BUMJU KIM |
Claimant |
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- and - |
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THE GOVERNOR OF HIS MAJESTY'S PRISON WANDSWORTH |
Defendant |
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Arianna Kelly (instructed by The Government Legal Department) for the Defendant
Hearing date: 17 January 2024
Further submissions lodged: 1 and 2 February 2024
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Crown Copyright ©
THE HONOURABLE MR JUSTICE PEPPERALL:
"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."
"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."
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.
"Upon review of the file, the secondary checker was unsure of the release date because of the discrepancies in the offences and dates between the Remand Warrant and the Custodial Sentence Warrant. The secondary checker escalated this to one of the local hub managers who advised that, given the time, and that the original calculator was no longer available on that day, clarification should be sought from the court the next morning."
"My understanding is that the OMU advised Governor James that they would deal with the matter and that there was no need for her to respond to the email."
"I am aware of the criticisms made by the Court in the case of Niagui in regards to HMP Wandsworth's processes for dealing with out-of-hours detention issues and staff appreciation of the burden on the prison to demonstrate that there is lawful authority to detain. Following the Court's judgment in that case, an out-of-hours support line was set up by [His Majesty's Prison & Probation Service] which can be utilised for out-of-hours habeas corpus applications. The line is manned by the Operational Implementation & Support Group within HMPPS. The purpose of this line is to facilitate instructions on the application and to ensure that the relevant establishment can take action as soon as possible. The support line is open Monday-Sunday 09:00-22:00, including public and bank holidays. These opening hours should allow most cases to be responded to but, in this case, the GLD lawyer on duty was only notified of the claim around 23:00 on 16 January, meaning that the line was already shut at that point until 09:00 on 17 January. I am also aware that, in response to the Niagui judgment, training sessions were delivered to OMUs across the prison estate, including HMP Wandsworth, to explain the service and point out the importance of prompt action with suspected or confirmed habeas corpus cases."
19.1 This was not a case, like Niagui, in which a hearing only ended after usual court hours on a Friday night. Mr Kim was sentenced at 11.41 a.m. on a Tuesday morning in a normal working week. His release should have been processed shortly after the hearing concluded and this case should never have had to involve the engagement of out-of-hours procedures.
19.2 The claim to have learnt the lesson that it is for the prison service to justify continued detention rather than the prisoner to prove a right to release rings hollow. Indeed, Governor Price's evidence demonstrates that this prisoner was detained for over 23 hours after the initial decision-maker correctly identified that he should be released immediately not because the prison was aware of any ground for his continued detention but because staff needed to check matters.
19.3 As in Niagui, it is worrying to see the dismissive way in which a solicitor's representations were dealt with by the officers and duty governor at the prison. Neither Governor James nor any other staff afforded him the courtesy of a reply and it was clear from their attitude that the prison would do nothing until the OMU staff started work the next morning.
19.4 It is no good setting up a dedicated unit to deal with urgent out-of-hours habeas corpus applications and not also troubling to train staff to refer cases or lawyers to that unit. Either the two different members of prison staff who took Mr Dalton's calls at 6.28 p.m. and 8.15 p.m. were ignorant of the specialist unit or they were entirely unwilling to share that information with a solicitor calling in the very situation for which the unit had apparently been set up. Furthermore, it appears that no systems have even been put in place to identify emails received by the prison containing the keywords "habeas corpus" in order to ensure that such emails are immediately (and perhaps automatically) referred to the out-of-hours specialist unit.
19.5 Further, it is extraordinary that a solicitor's insistence that a prisoner was being unlawfully detained and that, absent his immediate release, an out-of-hours habeas corpus application would be made to a High Court Judge does not appear to have met the threshold of seriousness to trouble the duty governor. Instead the complaint appears to have been met with institutional indifference.
19.6 On the evidence before me I am, in any event, sceptical that the unit would have done anything more than advise that the case would have to be reviewed by OMU staff at the beginning of their next shift.
19.7 Even after receipt of the court's order at 3.11 a.m., it took over 8 hours to release Mr Kim. There is no evidence that the prison regarded it as an urgent matter. For the avoidance of doubt, my order requiring Mr Kim to be produced before the court at 11 a.m. if he had not already been released was not authority for his further detention until the time of the hearing.
19.8 While I am sorry to hear that there was a medical emergency in the prison during the night of 16/17 January 2024, there is no evidence before me that such emergency fully occupied Governor James between 8.30 p.m., when she was personally emailed about Mr Kim's case, and 7.30 a.m. the next morning when she first read the court's order.
20.1 I am told that Governor James read my original order at 7.30 a.m. and then left the matter with the OMU. My order and the writ were addressed to the Governor of Wandsworth Prison and not the OMU. It was for Governor James and the duty governor who then came on duty later that morning at the end of her night shift to ensure that the order and writ were complied with. There is, however, no evidence that Governor James or any other governor did anything more than pass the matter on to the OMU. That is not acceptable.
20.2 While I am told that there were difficulties in arranging transport, there was a formal court order and a writ commanding the Governor personally to produce Mr Kim before the court at 11 a.m.. Nevertheless, Mr Kim was neither released by 11 a.m. nor produced at court. Nor did the Governor seek any extension of time for complying with my order or the writ. Rather it appears to have been assumed that the court would simply tolerate some delay beyond 11 a.m. provided it was not too long.
20.3 My second order of 17 January was not complied with either in that no evidence was served by 4 p.m. on 25 January 2024. Further, no application for an extension of time was lodged by that deadline. Again, it appears to have been assumed that an application issued shortly after the expiry of that deadline was acceptable.
20.4 Furthermore, there has never been compliance with my order to file evidence by affidavit.
22.1 It is neither lawful nor acceptable to detain prisoners for a further 24 hours after there ceases to be any lawful basis for their continued detention.
22.2 It is incumbent on the prison service to ensure that pre-release checks are completed speedily. The onus is always on the prison service to establish that there are grounds for further detention, and not upon the prisoner to establish his or her entitlement to release.
22.3 Prisons must be able to respond urgently to lawyers properly raising questions as to the lawfulness of continued detention. Governors are responsible for the management of their prisons and it is not acceptable to ignore habeas corpus applications or to regard them as an inconvenience that can be addressed during office hours or delegated to the OMU.
22.4 Court orders and writs of habeas corpus must be strictly complied with and treated with greater seriousness than has been evident in this case.
24.1 First, the Governor having conceded the point, I formally declare that Mr Kim's continued detention following the sentencing hearing on 16 January 2024 was unlawful.
24.2 Secondly, in view of the serious failures in this case both in respect of the proper and timely processing of Mr Kim's release and in compliance with the court's orders and the writ of habeas corpus, I am in no doubt that the Governor should pay Mr Kim's costs on the indemnity basis.