Reginald Zenshen v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 15 September 2023 |
| Neutral Citation | [2023] EWHC 2279 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/554/2023 |
[2023] EWHC 2279 (Admin)
Dexter Dias KC
(sitting as a Deputy High Court Judge)
Case No: CO/554/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nick Armstrong KC (instructed by Bhatt Murphy) for the Claimant
Ms Scarlett Milligan (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 July 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on 15 th September 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.
I divide the text into 10 sections to assist parties and the public follow the court's line of reasoning.
B123
(hearing bundle page). AB456 (authority bundle page).
CS §12 (claimant skeleton paragraph number). DS §12 (defendant skeleton paragraph number).
§I. Introduction
| Section | Contents | Paragraphs |
| I. | Introduction | 3–5 |
| II. | Facts | 6–16 |
| III. | Parole Board's recommendation | 17–18 |
| IV. | Secretary of State's decision | 19–22 |
| V. | Permission and grounds | 23–24 |
| VI. | Law | 25–32 |
| VII. | Claimant submissions | 33 |
| VIII. | Defendant submissions | 34–36 |
| IX. | Discussion | 37–88 |
| X. | Relief | 89–96 |
In this application for judicial review, the sole question for the court is whether the decision of the Secretary of State for Justice to reject the recommendation of the Parole Board that the claimant be transferred to open prison conditions was lawful. Nothing more, nothing less.
The claimant now calls himself Reginald Zenshen and is presently incarcerated at HMP Warren Hill. At the time of his murder conviction in July 1991, he called himself Reginald James Wilson. He has therefore served 32 years' imprisonment following the imposition of a life sentence with a minimum term of 30 years. He is thus “post-tariff”. That means that he has completed the punishment part of the sentence and the question that remains before any release is one of risk to the public. His severe sentence was richly deserved. The crime he committed was of the utmost gravity. The word “appalling” is used too frequently. However, this is certainly a case in which it was justified. The question before the court is not whether he should be released from his sentence, but a markedly narrower one: whether the refusal of the Secretary of State to accept the recommendation of the Parole Board that the time was right for the claimant to be transferred to open prison conditions with a view to monitoring and testing him prior to any final release was a decision that can stand in light of the settled principles of public law. The fact is that the claimant is not serving a whole life term, and thus the prospect remains of his being released into the community at some point.
The claimant is represented by Mr Armstrong KC of counsel. The defendant is the Secretary of State for Justice and is represented by Ms Milligan of counsel. The court is indebted to both counsel for the valuable assistance provided.
§II. Facts
Much of the hearing before me focused, understandably, on the claimant and the progress he has made in his life. But there is a victim here. Out of respect to the deceased and his family, it is important that I set out the true facts, distressing as they are, and not gloss over them. This also serves as the proper context for the difficult risk assessments that professionals and public officials have been tasked to make.
On 3 February 1990 the claimant was 25 years old. His chosen victim was Dr David Birkett, who lived alone in Middlesborough. Dr Birkett was a highly respected consultant dermatologist and consultant palaeopathologist. One reason for the claimant selecting Dr Birkett was that the Doctor lived on his own. On 3 February the offender posted a hand-written note through Dr Birkett's letterbox purporting to come from dispatch motorcycle couriers. It was to induce Dr Birkett to arrange a time for delivery of a parcel. The number given on the note was the number of a nearby telephone kiosk.
Dr Birkett almost certainly telephoned the number. Reginald Wilson was waiting for the call. Dr Birkett invited him into the house. The claimant was armed when he entered, most likely with something like a hammer. It was a heavy, blunt instrument wrapped and held inside a plastic carrier bag. He was also carrying a rope.
Once Dr Birkett had answered the door he was struck down with a blow. That blow was then followed by further heavy blows with the blunt instrument which was still inside the carrier bag. These blows were aimed at Dr Birkett's head. The assailant then dragged the Doctor into the study using a rope tied around Dr Birkett's arms. This was deliberately done to avoid any forensic link between him and Dr Birkett. In the study further blows were inflicted on Dr Birkett's head with the weapon. In all something like 17 blows were struck to the back, sides and front of his head. The blows fractured the vault of his skull. The resultant brain injury proved fatal.
After killing Dr Birkett, the claimant scoured the house and stole a wallet and pocket watch. Dr Birkett kept a medieval skull in the house that had sustained violent damage to the frontal area. After the murder the skull was missing. One of the features of the case which the trial judge, Potts J, noted was the coincidence of injury between that skull and the injuries inflicted on Dr Birkett.
In subsequent legal representations from the claimant's solicitors (May 2006), the claimant apparently agreed that when the offence was committed he was “preoccupied with a hatred of authority and that he had some form of loose and relatively unformed idea that by committing this murder he would be brought into direct and physical conflict with the police. It was this conflict that he was seeking to precipitate by committing the murder.” In other words, the claimant killed Dr Birkett as a device to achieve his greater aim, which was to kill members of the police force.
Reginald James Wilson was convicted of murdering Dr Birkett. He also fell to be sentenced for a series of other offences, having pleaded guilty to possession of a firearm, a sawn-off shotgun and 73 cartridges found during a police search of his home. The police also found hammers, a crossbow, knives and knuckledusters, together with survival gear. There was also evidence that he read and wrote poetry about death and killing. He had drawn up a list of people in authority, largely police officers, and had a radio scanner that was tuned into police frequencies. He told his girlfriend he intended to kill a policeman.
On 25 July 1991, the claimant was sentenced to life imprisonment by Potts J. The judge stated that the claimant was guilty of an “appalling” murder. On 16th December 1994 he was notified in writing that the Secretary of State of the day had decided that the requirements of retribution and deterrence could be satisfied only by the claimant remaining in prison for the whole of his life. On appeal, Lord Lane CJ agreed, adding:
“This man should remain in prison for the remains of his natural life by way of punishment and deterrence quite apart from any question of risk.”
When the Criminal Justice Act 2003 changed the law, the claimant applied for a review of the whole life order pursuant to paragraphs 2(b) and 3 of Schedule 22. The case came before Tugendhat J. He revised the sentence. By a written judgment dated 16 May 2008, the judge substituted a minimum term of 18 years' imprisonment. This sentence was itself subject to challenge by way of Attorney-General reference under s.36 of the Criminal Justice Act 1988 ( Attorney-General Reference No. 38 of 2008). Giving the judgment of the Court of Appeal, Sir Igor Judge PQBD, echoed the strong condemnation of previous courts. He stated at [36]:
“… this offender chose the victim (and we are sorry for the deceased's family but we have to say it) as a sacrificial pawn in his battle with authority and the police in particular. He was deliberately chosen because he lived alone and he was known to the offender to be vulnerable. After entering his home and rendering him defenceless the offender subjected him to a vicious and prolonged attack. We have no doubt that from the very outset the offender intended to kill his victim and that every one of the blows he inflicted was struck with that intent. … The horrific scene which greeted the victim's 16-year-old daughter (which we shall deliberately not describe) has blighted the rest of her life and the continuing impact on each member of this family is movingly, but so far as possible, objectively described in the statements which we have read.”
The court proceeded to reassess the sentence significantly [38]:
“We are quite satisfied that the decision on the review was manifestly lenient. It will be quashed. In the light of the information before us, which was not before Tugendhat J, in our view the minimum term to be served by this offender before he may be released should be re-assessed at a period of 30 years' imprisonment. The life sentence will of course remain unchanged.”
Thus it was that the claimant was serving a life sentence with a minimum term of 30 years and came before the Parole Board at the end of 2022 for review of his prison categorisation.
§III. Parole Board recommendation
A hearing of the Parole Board was convened on 14 November 2022. The witnesses who gave evidence included the following:
• Ms Johnson, Prison Offender Manager (“POM”)
• Ms Daniels, Forensic psychologist
• Mr Taylor, Community Offender Manger (“COM”)
•...
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