Bumju Kim, R (on the application of) v Governor of HMP Wandsworth

The state bears the burden of justifying a prisoner’s continued detention. Once the lawful basis for detention ends, the prisoner must be released without avoidable delay. Administrative checks, staffing arrangements or prison policies do not themselves authorise further detention.

Prisons must maintain effective arrangements for completing pre-release checks promptly and for responding urgently to lawyers who raise credible concerns about unlawful detention. Governors remain responsible for ensuring compliance and cannot treat habeas corpus applications as matters for ordinary office hours or delegate responsibility without effective oversight. Court orders and writs of habeas corpus require strict compliance.

The claimant pleaded guilty at Westminster Magistrates’ Court and was sentenced to ten weeks’ imprisonment. Because of time spent on remand, the parties accepted that he should have been released immediately after sentence. He was instead returned to HMP Wandsworth and remained detained for more than 23 hours.

His solicitor repeatedly challenged the detention. The court granted leave for habeas corpus and ordered the Governor to produce the claimant unless he had been released. The claimant was released after the deadline and was not produced before the court. The Governor later conceded that the detention had been unlawful. The issues were the legality of the continued detention, the prison’s handling of the urgent representations and writ, and the appropriate costs order.

1. The court formally declared that the claimant’s continued detention after the sentencing hearing was unlawful. The Governor conceded that there had been no lawful basis for detention after the claimant became entitled to release.

2. The onus rested throughout on the prison service to establish lawful authority for continued detention. It was neither lawful nor acceptable to detain a prisoner for a further 24 hours while staff completed checks or sought clarification. Pre-release checks had to be completed speedily. The court relied on the approach explained in R (Niagui) v Governor of HM Prison Wandsworth [2022] EWHC 2911 (Admin), [2023] 4 W.L.R. 2, and referred also to Rahmatullah v Defence Secretary [2012] UKSC 48, [2013] 1 A.C. 614.

3. Prisons had to respond urgently to properly raised concerns about unlawful detention. Governors were responsible for the management of their prisons. It was unacceptable to ignore a solicitor’s urgent communications, to wait for ordinary office hours, or to delegate the matter to the offender management unit without ensuring that effective action followed.

4. The court order and writ of habeas corpus required strict compliance. The order directing production at 11 a.m. was not authority for further detention until that time. The Governor’s failure to release the claimant, produce him before the court, seek an extension, and comply with subsequent directions demonstrated an unacceptable disregard for court orders.

5. Contempt proceedings were unnecessary and disproportionate once the claimant had been released. However, the seriousness of the failures justified costs on the indemnity basis. Further directions were to be given for assessment of damages and costs.