R (on the application of Robert Cusworth) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1281 (Admin) |
| Docket Number | Case No: CO/2225/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1281 (Admin)
Dexter Dias KC
(sitting as a Deputy High Court Judge)
Case No: CO/2225/2022
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Bimmler (instructed by Bhatia Best, Solicitors) for the Claimant
Mr Tom Tabori (instructed by Government Legal Department) for the Defendant
Hearing date: 4 May 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on Friday 26 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dexter Dias KC
Dexter Dias KC:
(sitting as a Deputy High Court Judge)
This is the judgment of the court in an application for judicial review.
It is divided into eleven sections, as set down in the table below, to assist parties and members of the public follow the court's line of reasoning.
B123 (electronic bundle page); SB 456 (supplementary bundle page); SFG (Summary of Facts and Grounds); CS/DS (claimant/defendant skeleton).
§I. THE MURDER OF SALLY GARWOOD
| Section | Contents | Paragraphs |
| I. | The murder of Sally Garwood | 3–7 |
| II. | Impugned decision | 8–9 |
| III. | Grounds | 10–12 |
| IV. | Procedural history | 13–14 |
| V. | Legal and policy framework | 15–18 |
| VI. | Ground 1: breach of published policy (context of analysis) | 19–23 |
| VII. | Factor b. (Dispute(s) on expert evidence) • Dispute 1: rival recommendations • Dispute 2: self-harm and autism • Dispute 3: relapse prevention plan | 24–75 |
| VIII. | Factor c. (length of time imprisoned) & Factor d. (no previous oral hearing) | 76–77 |
| IX. | Conclusion Ground 1 | 78–80 |
| X. | Ground 2: common law unfairness (i) Complexity (ii) “Watershed” moment (iii) Broadmoor Hospital (iv) Overall procedural fairness | 81–94 |
| XI. | Disposal | 95–98 |
The claimant Robert Cusworth was sentenced on 29 January 2010 to life imprisonment with a minimum term of 19 years and 6 months to serve in prison before being eligible for parole. He has been in HMP Whitemoor as a Category A prisoner and challenges the decision of the defendant in this case, the Secretary of State for Justice (delegated to his Directorate of Security), not to grant him an oral hearing in the annual review of his security categorisation. This case raises important questions about how officials charged to administer the High Security Estate of the Prison Service, where some of the highest risk and most dangerous offenders are located, exercise their powers in the public interest to keep the public safe.
The parties are represented by counsel. The claimant by Mr Bimmler; the defendant by Mr Tabori. The court is grateful to them both for their focused submissions. But why is the claimant in prison at all?
On the afternoon of Friday 10 July 2009, Robert Cusworth became frustrated with a number of aspects of his life. He began drinking in Aylesbury and went to a Tesco's store in a nearby retail park, where he purchased a knife for £2. He then set about looking for someone to attack in the Quarrendon area, a tranquil green space north of Aylesbury. There was no one about. However, his frustration and rage did not abate.
The next day, he returned to the seclusion of Quarrendon. He spotted a lone jogger. However, before he could begin his assault, a group of people came into view and that unnerved him. The jogger continued jogging. Robert Cusworth then saw a young woman out walking her dog. This was Sally Garwood, a complete stranger to him. Mrs Garwood smiled as she passed him and said hello. Shortly afterwards, he approached her and grabbed her throat. He also grabbed her by the hair when she tried to protect herself and the two of them fell into a stream. Robert Cusworth stabbed Sally Garwood 26 times in the neck. She died from his knife attack.
At Reading Crown Court in 2010, the claimant received a 20-year minimum tariff, less the time he had spent on remand. His sentence tariff expires on 29 July 2029. He wishes to move to a prison of lower security classification than the current Category A placement, and claims that he should have had an oral hearing to argue it. Category A prisoners are those
“whose escape would be highly dangerous to the public or the police or the security of the State, and for whom the aim must be to make escape impossible” (PSI 08/2013, para 2.1)
§II. IMPUGNED DECISION
On 16 February 2022, the Executive Director of the HMP Prison and Probation Service Directorate of Security (“the Director”) reviewed the claimant's security categorisation following an annual review, a procedure in the Prison Service to ensure people are detained in the appropriate security settings. His review was required because on 20 January 2022, the Local Area Panel (“LAP”), consisting of a deputy governor (acting as chair), the head of Offender Management and “intel” analyst, amongst others, had recommended a categorisation downgrade. This was supported by the internal psychologist, Ms Evans. The Prison Offender Manager (“POM”) Ms Looseley, however, opposed downgrading. A positive recommendation having been made, the Director was tasked with making the decision. He decided against a downgrade to Category B. This decision was communicated in a decision letter dated 16 March 2022. But the decision under challenge is not his risk assessment, rather his decision that he was able to make the categorisation decision on the papers. The papers before him consisted of a dossier of reports and information (“the dossier”). He decided the case on the dossier instead of convening what is called an “oral hearing”. This is the “impugned decision” that is the subject-matter of this claim. As made clear in the claimant's skeleton (CS §2):
“The Claimant's challenge is not one to the merits of the decision that he remain a Category A prisoner as such, but concerns the process by which it was reached.”
At the time of the impugned decision, the claimant was located at HMP Whitemoor and classified as a Category A prisoner. After an initial period, people who receive a life sentence with a minimum tariff generally have their security categorisation reviewed on an annual basis. The review is by a local panel at the prison the individual is held at. If this panel recommends downgrading the categorisation, then the matter is reviewed centrally by the Directorate of Security, centrally based in Petty France, London. Here the LAP recommended downgrading Robert Cusworth's classification and thus the Director reviewed the matter. His decision (B132), having examined the dossier of documents and reports, stated:
“The Director considered Mr Cusworth's offending showed he would pose a high level of risk if unlawfully at large, and that before his downgrading could be justified there must be clear and convincing evidence of a significant reduction in this risk.
The Director recognised Mr Cusworth has engaged in therapy for some time and there is evidence of a degree of progress in terms of his understanding of his risk factors and greater stability in his behaviour. He considered the current evidence however shows there are a number of key offence-related issues that are incompletely addressed or need further development. He considered this evidence shows the level of Mr Cusworth's progress and his capacity to manage his risk outside his current security remain to a great extent unknown. He considered first Mr Cusworth's agreed transfer to Broadmoor Hospital (a high security psychiatric unit) is not compatible with an assessment that he has at this time achieved significant progress and risk reduction. He noted the recommendation for further work on relapse prevention on triggers to rumination, a key offence-related issue. He considered also the conclusion that Mr Cusworth is now more likely to harm himself is not a wholly reliable indicator that he has yet significantly reduced his capacity for violence to others. He noted also there is no unanimous view from staff that Mr Cusworth has achieved significant progress.
The Director considered there are in the meantime no grounds for an oral hearing in relation to this review in accordance with the criteria in PSI 08/2013. He considered there are no significant facts in dispute and that the available information and reasoning for downgrading are readily understandable. As stated above the recommendations for Mr Cusworth's progression are based on recent and unconvincing evidence of progress. He did not accept simply disagreeing with the LAP, reports or representations on the basis of such recommendations represents a significant dispute justifying an oral hearing. He recognised Mr Cusworth has been in prison some years and has never had an oral hearing. He considered these factors alone could not however justify an oral hearing without other supporting grounds. He noted Mr Cusworth has some years to go to tariff completion. He considered Mr Cusworth also remains free to engage in identified pathways effectively in the meantime to enable closer assessment of significant progress and is not in an impasse.
The Director considered evidence of a significant reduction in Mr Cusworth's risk of similar reoffending if unlawfully at large is not yet shown. He is therefore satisfied Mr Cusworth's downgrading cannot be justified and he must stay in Category A at this time.”
§III. GROUNDS
This decision is challenged on two grounds, both intimately connected to the procedural fairness of the case.
Ground 1: Failure to comply with published policy
Ground 2: Common law unfairness
Ground 1 states that the defendant's own policy was breached. The policy is PSI 08/2013 “The Review of Security Category – Category A/Restricted Status Prisoners”. The...
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