Wandsworth Prison in the dock over unlawful detention

The High Court has identified “serious failures” at Wandsworth Prison, after a man was unlawfully detained for more than 23 hours.

On 16 January, Bumju Kim pleaded guilty to battery, and at 11.41am he was sentenced to 10 weeks in prison. Taking into account the time he had already spent imprisoned before the hearing, he should have been immediately released. But instead he was put on a bus and taken back to Wandsworth Prison.

When Kim’s solicitor heard he might not be released for two more days, he raised a formal complaint and called the prison, only to be told that he could not speak with the duty governor. The prison wouldn’t even tell him who the governor on duty was.

At 7.16pm, Kim’s solicitor sent an email marked “URGENT”, explaining that if Kim were not immediately released he would ask for an urgent hearing at the High Court. His repeated attempts to contact the prison were ignored and at 2.31am the court issued a writ of habeas corpus demanding that Kim be presented to the court by 11am. But the prison failed to meet this deadline. The governor didn’t show up at the hearing or even send a lawyer to represent her position. Kim was released shortly afterwards, having spent the night unlawfully detained in jail.

The judgment, given on 21 March, begins by declaring that “There are few rights more important in a free and civilised democracy than that no one should be unlawfully detained by the state.”

This right can be asserted in English law by the ancient writ of habeas corpus, a special order issued by a court that requires any detained person to be produced so that the lawfulness of their detention can be considered.

As the judge noted, it is for the state “to justify the prisoner’s continued detention,” and if it cannot, “the prisoner must be released”.

While the roots of habeas corpus predate Magna Carta, it was in the 16th and 17th centuries that it developed into its modern form, becoming what the legal scholar John Baker has called the “principal safeguard of personal liberty”. When Charles I imprisoned five knights who had refused to contribute to a forced loan in 1627, their appeal for habeas corpus was rejected. The following year, Parliament passed the Petition of Right, which enshrined this and other “rights and liberties”, beginning a process which saw the writ of habeas corpus guaranteed during the Long Parliament and improved by legislators in 1679.

In Kim’s case, the governor acknowledged the email inbox was not staffed after 5pm, and the urgent emails were not read until the following morning. Although the duty governor was aware the solicitor was trying to contact the prison, she said she had been too busy to answer. Although she read about the writ of habeas corpus the next morning, she left the Offender Management Unit to deal with it.