Mr Justice Collins was right to decide that Brett James's lawful custody has become unlawful because of the failings of the system. However, he was wrong to allow the continued detention until Jack Straw, the Minister of Justice, has the opportunity to appeal. He should, at least, have freed the prisoner on bail. This is the second case of this type within a month. The Labour government have had 10 years to get its act together. Giving them until October is literally taking a liberty.
This case, and others like it, expose the weakness of judicial review providing an effective remedy guaranteed under the European Convention. Prior to O'Reilly v Mackman a citizen could simply take a case into court and get a decision. Now, a citizen has to seek the permission of a judge to challenge the government. In effect, judges have become the goalkeepers for the State. The government has had every opportunity to defend this challenge in open court and failed miserably.
Mr Justice Collins first reached a legal decision, and then fettered it by making a political decision.
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