Babir Bashir v Simon Drysdale, The Governor at His Majesty’s Prison Pentonville

A person may be detained only where the detaining authority can identify lawful authority. Prison administrative procedures and delays in completing release paperwork do not, without more, provide such authority. Prison governors must respond urgently to credible complaints of unlawful detention, ensure that relevant checks are undertaken promptly, and arrange appropriate out-of-hours systems. Where release on licence requires conditions that could not reasonably have been prepared before sentence, a short period for essential administration may potentially be justified. Any delay must be limited to the minimum reasonably practicable; detention over an entire weekend is unlikely to satisfy that requirement.

The claimant was sentenced to a fixed term of imprisonment after spending sufficient time on remand to trigger early release on licence. The sentencing judge stated that he was to be released, but the prison did not release him on Friday afternoon because its offender management unit had closed and the necessary release and licence administration had not been completed.

The claimant applied out of hours for habeas corpus. The court ordered his release by midday on Saturday, but he was released at about 2 pm. The defendant did not initially provide evidence justifying the detention, although the Governor later explained the prison’s out-of-hours procedures. The central issues concerned the lawfulness of detention pending administrative processing, the responsibilities of the prison and probation services, and the adequacy of the release system.

1. Disposition. The claimant was released after the court’s order. The defendant did not assert lawful detention and apologised for the delay and breaches of court orders. The court awarded the claimant the costs of the habeas corpus application, summarily assessed at £6,145.
2. Lawful authority and burden. No prison officer, governor, contractor or other official may detain a person without lawful authority. Where detention is challenged, the burden rests on the prison governor to identify and communicate the legal authority for continued detention. The question is whether detention remains legally authorised, not whether release has been administratively approved. The approach in R (Niagui) v Governor of HMP Wandsworth, reported at [2023] 4 WLR 2, and R (Bumju Kim) v Governor of HMP Wandsworth, reported at [2024] EWHC 645, was restated and applied.
3. Administrative processing. Prison instructions and release checks do not themselves justify continued detention where the prisoner has an unfettered entitlement to liberty. Pre-hearing checks should be completed wherever possible, including calculation of time served and preparation of likely licence material. Lawyers’ complaints about unlawful detention must be passed promptly to the Governor or Duty Governor and must not be deferred until the next working day.
4. Release on licence. The court had not received full argument on the construction of section 244 of the Criminal Justice Act 2003. Where release depends on licence conditions that could not reasonably have been prepared in advance, a short period for essential administration may potentially be necessary. The delay must nevertheless be limited to the minimum reasonably practicable. A whole weekend was not such a minimum on the evidence before the court.
5. Systemic guidance. Pentonville required a clear out-of-hours procedure, effective escalation of release communications, advance preparation of paperwork, and an adequate probation service for licence conditions. The court declined to pursue contempt proceedings against the Governor in this case, having been impressed by his subsequent approach, but warned that similar failures could have serious consequences.