25 March 2024

Lazy bureaucrats are threatening the rule of law


If you want a serious example of broken Britain that doesn’t neatly fit the Left’s culture of blaming everything on populism and underfunding, look no further than what happened at Wandsworth prison earlier this year, as described in a High Court judgment reported last week.

On a Tuesday morning, Westminster magistrates sentenced a Korean gentleman, Bumju Kim, to ten weeks for assault. Since he had already spent more than that on remand, he should have been set free. Instead he was bundled straight back on the bus to HMP Wandsworth. Wandsworth that evening realised something was wrong, but calmly told Mr Kim that even if it was, nothing could be done for a couple of days. Meanwhile, Mr Kim would just have to stay unlawfully cooped up in a stinking prison.

Things got worse. When Mr Kim’s lawyer rang up to ask what on earth was happening, the person who answered was unhelpful as only the English can be. He didn’t know anything about it. No, he would not put him through to the Deputy Governor. No, he could not divulge that person’s name. All he could suggest was emailing something called the Offender Management Unit, but they were busy and might well not answer for a day or so.

The lawyer duly emailed them, under the heading Urgent. No response. Two hours later he rang the prison again. No, they couldn’t disclose details of the Duty Governor either. Being told the High Court was going to be involved, the telephonist then grudgingly spoke to the Deputy Governor and relayed her curt answer: the bureaucrats had all gone home, and unless the prison saw a court order, everything had to wait until the start of business on Wednesday. Eventually, the lawyer got the Duty Governor’s name and contact details: not that this did much good, since his email to them similarly went unanswered.

At about 2:30 on Wednesday morning, a High Court judge issued a writ of habeas corpus addressed to the Governor herself, commanding her either to release Mr Kim or bring him before him by 11am next day. The lawyer rang the prison early next morning, presumably with this news, but the receptionist refused to put him through to either the Duty Governor or the Offender Management Unit. Nor was Mr Kim brought before the court by 11 (though he was released a little later). Ordered by a furious judge to file evidence within seven days explaining her plain disobedience to a habeas corpus writ, the Governor did nothing. She finally responded some days later after a threat to sentence her for contempt of court.

It’s difficult to know where to start. We know our prisons are dangerously underfunded, but few if any of these problems were due to resources. The Wandsworth management seems to have inculcated, or at least not taken steps to eradicate, an approach designed, frankly, to shield its members from direct contact with outsiders who might make trouble. Whatever the position with private sector organisations, where at least the market has a solution for egregious failures of service, when people’s liberty is at stake this is a scandal.

Again, there is a dangerous bureaucratic nine-to-five mentality at work here. ‘The only person authorised to deal with this has gone home: we’re shut until he comes back’ may be alright when it’s a matter of chasing an unpaid invoice, but when it’s someone unlawfully locked up, it isn’t. Indeed, it gets worse. After a similar debacle eighteen months ago, the Prison Service set up a dedicated unit specifically to deal with out-of-hours events like this. But in good bureaucratic fashion, it provided no facilities, even an emergency number to get someone out of bed, between 10pm and 9am. Bad luck that in this case a call was made, but after 10 pm. The only response was ‘come back tomorrow’. It’s bad enough that the NHS holds this attitude, but it’s worse when a citizen’s legal right not to be locked up without good reason is involved.

Even worse, however, is the threat to the rule of law. Forget earnest if abstract arguments from academics and others that adjusting the parameters of judicial review, implementing the Rwanda scheme, or whatever the latest controversy is an affront to the rule of law. This is a case of public servants knowingly failing to implement a peremptory order from a judge. True, it may be that the governor of Wandsworth faced difficulty complying with the order to to release or produce Mr Kim (there was mention of physical delays to release and a lack of an available prison van), but she could at least have been expected to contact the court to ask for more time. And the later casual failure to respond to the court’s requirement to explain matters seems inexplicable. When a public servant is in receipt of a court order, especially one on a sensitive subject like this, one has every right to expect them to obey it immediately and implicitly. That is the basis of the society in which we live.

The judge himself hit the nail on the head. The Governor of Wandsworth seemed, he said, to have regarded a court order as not so much an order but a target: as something to be slotted in to the other matters of routine and performed as and when possible. That’s bad enough with orders addressed to private litigants to do this or that. With orders concerning the liberty of the subject it is, as the judge made clear, unforgivable.

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Andrew Tettenborn is a professor of law at Swansea Law School

Columns are the author's own opinion and do not necessarily reflect the views of CapX.