England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS

		Leeds Combined Court Centre The Courthouse, 1, Oxford Row Leeds LS1 3BG
		11 June 2010

HH Judge Roger Kaye QC:

Introduction and Issue

1. The claimants Mr John Smith and Mr John Mullally, are (or were at the relevant time) serving prisoners at HMP Lindholme. Both made application for re-categorisation of their security status from Category C to Category D. In both cases they had, at the time of the relevant determination, more than 2 years to serve before they reached their Conditional Release Date ("CRD"). In both cases their application was refused on the grounds, amongst others, that each had more than two years left of sentence to serve and no exceptional circumstances were shown to justify re-categorisation. Subsequent reviews have led to the same determination, essentially on the same grounds. Both prisoners have applied for judicial review of these decisions. The issue in both cases is the same: was the decision lawful?

Evidence

2. The evidence (unchallenged) in these cases has largely consisted of production of copies of documents. Aside from the claim form I have seen no witness statements or narrative evidence from either side in particular none from the defendant Governor so have been unable, for what it might have been worth, to ascertain how, in fact, the relevant decisions were reached or even by whom. In both cases there have been tantalising notes on the relevant prison forms about security issues but these have been left largely unexplained save by reference to further (in some cases redacted) documents. Accordingly my impression of the facts and relevant procedures has been left entirely to the documents (consisting largely of barely legibly completed prison forms) and relevant Prison Service Orders ("PSOs") and Prison Service Instructions ("PSIs") placed before me.

The Facts – Mr Smith

3. So far as I can ascertain, the essential facts are not in dispute.
4. Mr Smith was sentenced to 13 years imprisonment for offences of conspiracy to supply controlled drugs and possession of an offensive weapon. His CRD is 13 November 2012. In 2009 he was categorised as a Category C prisoner. He completed an application form "Application for Recategorisation in Exceptional Circumstances" asking to be re-categorised from his existing Category C status to Category D. What he sought, according to his application, was a chance to prove himself in D open conditions.
5. The comments by his wing officer were positive. He was described as "a polite and respectful prisoner". He had met his targets and was anxious to progress. The wing principal officer commented it was too long to his release date and suggested a transfer nearer to his home.
6. Following the application and in order to be able, no doubt, to make the appropriate determination, the prison authorities duly completed prison form RC1 dealing with his security and suitability assessments in line with the instructions contained in the relevant PSOs. Part of this form as disclosed was redacted. Item 6, the security assessment, was blanked out. The upshot was that apart from one comment, no adverse remarks against Mr Smith were made on the form. The exception was a comment "Security See 6" but no part 6 was shown.
7. The final decision dated 16 June 2009 (in handwriting barely decipherable) noted the security issue (in the same terms), noted there had been no adjudications against the prisoner during his term, that he had met his targets, that there were good reports but also that Mr Smith was "well outside criteria of PSI 03/09 – has over 3 years to serve". Accordingly the decision was to leave him at Category C.
8. On 24 June 2009 Mr Smith appealed via the prison internal appeals procedure. The following day his appeal was rejected. (I infer this although the response supposed to be attached to this form was not.)
9. The result was a formal Pre-Action Protocol letter sent on his behalf by his solicitors dated 11 August 2009 to which the Ministry of Justice replied on 28 August 2009. This letter stated as follows, so far as relevant:

"PSI 03/2009 states that prisoners who are automatically released at the halfway stage of their sentence should not normally proceed to open conditions until they are within two years of their release date. The Governor has adopted the criteria laid down in PSI 03/2009.

The countersigning Governor has reviewed your client's case and found that no exceptional circumstances exist to support a variance from the original decision."

10. This led to an application for judicial review of the Governor's decision which was lodged on 15 September 2009. An Acknowledgment of Service was filed which did not contest the application for permission (Mr Hunter, counsel for the defendant, accepts that an arguable issue arose) but asked for a stay for 28 days pending reconsideration. No Summary Grounds of Defence were filed.
11. On 5 November 2009 HH Judge Langan QC extended time, granted permission on paper, and granted the requested stay until 1 December 2009. He observed:

"The defendant has realistically not opposed the grant of permission: there is clearly scope for debate as to the interface between the 'lowest category' principle in PSO 0900 and the two-year requirement in PSI 03/2009 in the particular circumstances of this case."

12. On 7 December 2009 the Governor reconsidered Mr Smith's application. The decision, this time on a form headed "Security Category Assessment and Review" informed Mr Smith the assessment showed he was not considered suitable for open conditions. The reasons were ticked in the appropriate box on the form as follows:

"The length of your sentence and time left to serve. More than 2 years to serve and no demonstration of exceptional circumstances"

"Security information."

"Wing/work reports."

13. No reasons were elucidated for the "Security" or "Wing/work reports" though a further document (form RC 1) suggests the two latter matters amounted to the same thing: a report of tampering with food and a Security Information Report ("SIR") suggesting drug involvement (as to which no further details were given). The same document gave the reasons for refusal as "Security info and more than 2 yrs to serve and no demonstration of exceptional circumstances".
14. On 17 December 2009 Mr Smith was allowed a child and family day visit, something he was informed he would not have been selected for had he not passed "strict criteria" and "shown a positive attitude to [his] sentence".
15. Mr Smith, I was told, is no longer at HMP Lindholme but has been moved to a prison nearer his home. As I understand it the issue of his categorisation continues, however, to be reviewed every six months.

The Facts – Mr Mullally

16. Mr Mullally was sentenced on 24 July 2006 to 14 year's imprisonment for conspiracy to supply drugs. His CRD is 29 September 2012.
17. He too applied for re-categorisation as a Category D prisoner. He too had completed all offending behaviour courses and achieved his sentence plan goals.
18. On 23 June 2009 his application was refused on the sole ground that he had "3 years to serve. Criteria laid down in Prison Service Instruction 03/2009 states should be within 2 years of release date". Again the completed Suitability Assessment form referred to undisclosed security matters but the final decision does not seem to have relied on this. Instead the completed form (again barely legible) refers to over 3 years to CRD ad Mr Mullally being outside the criteria. It also referred to his OAsys assessment as low risk of reconviction, a medium risk of harm to the public and enhanced good reports.
19. Mr Mullally also adopted the internal appeals procedure on 29 June 2009. His appeal was rejected on the following grounds:

"Prison Service Instruction 03/2009 Chapter 15.1 states that prisoners serving a sentence of 4 years or more who will be released at the halfway point of their sentence (conditional release date) must generally be within 2 years of CRD. Your CRD is 29/09/12 which is over 3 years away. The Governor will not sign up prisoners who are outside the criteria. The implementation date for PSI 03/09 was 25/5/09. I agree that other prisoners have gone to open conditions with longer than 2 yrs to serve but not since the implementation of PSI 03/09."

20. Mr Mullally appealed again against this response. Again his appeal was rejected on 15 July 2009 by a letter this time in the following terms:

"In May 2009 a new Prison Service Instruction was published and applies to your re-categorisation review. The main impact of this PSI upon yourself is contained in paragraph 15.2:

Prisoners serving a standard determinate sentence are automatically released at the halfway point in their sentence (CRD) and must generally be within 2 years of CRD.

I have assessed your individual case and I am unable to support your re-categorisation due to the length of time you have left to serve. The overriding factors in this decision are the increased risk of abscond due to the length of time left to serve and the potential risk to public confidence if you were to be removed to open conditions at this point in your sentence." [The passage in italics and underlined is in italics in the original]

21. The result here too was a formal Pre-Action Protocol letter on his behalf by his solicitors (the same as Mr Smith's) dated 11 August 2009. The only response, so far as I can tell, was to send him the letter of the 15 July above to which someone added in manuscript the date 12^th August.
22. Mr Mullally also applied on 15 September 2009 to judicially review the decision. The Acknowledgment of Service filed was in the same form as that as Mr Smith's. HH Judge Langan QC dealt with this case the same as Mr Smith's also on 5 November 2009.
23. Mr Mullally's case too was reviewed on 7 December 2009 and too recommended retention in Category C. The Assessment and Review form in this case ticked Length of Service, specifying "More than 2 years left to serve and no demonstration of exceptional circumstances". The "Security information" box was also ticked, though no details were given, the Outstanding Oasys Sentence Plan Objectives box and the Oasys Risk of Harm Level box were also ticked, the former with no details (but presumably suggesting objectives still to be achieved) and in the latter specified as "Med" (presumably medium).
24. Form RC 1 also revealed good reports. It specified Mr Mullally's NPD (i.e. his CRD) as 29 September 2012 and noted he had 2 years and 10 months to serve "PSI 03/09 refers". It listed 5 SIRs (anonymous postal orders of small amounts, obscuring view of staff, drugs, and his popularity with Liverpudlian prisoners but no other detail, though this was later fleshed out in a document produced later by the defendant – albeit redacted, no doubt to disguise identities; the reference to drugs appears to have been an anonymous source). The reasons stated for the decision to retain him as Category C were the same as Mr Smith's: "Security information and more than 2 yrs to serve and no demonstration of exceptional circumstances".
25. On 20 May 2010 Mr Mullally's case was again reviewed. Again he was retained as Category C. This reported no change in his risk assessment and the absence of any risk issues in the preceding six months. It noted his good reports and was generally positive. Objectives had been achieved and high standards of work. No security intelligence was relevant. He too attended the child and family visitor's day (as did Mr Smith, above) on 17 December 2009 with no adverse comments. It noted the benefits to Mr Mullally gaining Category D status but concluded "under the guidance of PSI 03/2009 section 14.6, no exceptional circumstances have been identified to justify allocation to open prison at this stage".
26. Like Mr Smith, Mr Mullally's categorisation continues, I was informed, to be reviewed every six months.

Summary of Reasons for Refusal

27. The brief summary then of the refusals to re-categorise both prisoners from C to D seems as follows:

Name	Date	Reasons
Smith	16 June 2009	Security aspects, more than 2 years to serve, no exceptional circumstances
	7 December 2009	As before (food tampering, drugs)
Mullally	29 June 2009	More than 2 years to serve, no exceptional circumstances
	7 December 2009	Security aspects, more than 2 years to serve, no exceptional circumstances (postal orders, obscuring views of staff, drugs)
	20 May 2010	More than 2 years to serve, no exceptional circumstances

The Procedural History

28. The substantive hearing came before Langstaff J on 19 March 2010. By that time the defendant had still served no grounds of defence but had served a skeleton argument which, although the order as drawn does not reflect it, I was told was ordered to be treated as the defence grounds. The order as drawn certainly implies that for it adjourned the hearing with detailed directions for disclosure of further documents (which happened) and other matters including amended skeleton arguments if necessary.
29. In the upshot the two cases have been heard together and came before me with agreed documents in the bundle and amended or re-amended grounds and amended skeleton arguments (for the defendant). Again although not explicit it seemed sensible to treat the subsequent reviews in December 2009 (substantially on the same grounds) as also under challenge and no objection (in principle) was made to that. The documents disclosing the recent review of Mr Mullally's case were also disclosed and I gave permission for this to be challenged too. Although Mr Hunter, for the defendant, objected somewhat to what he described as a new argument raised at the last minute it seemed to me that the argument for the claimants in relation to all the assessments was essentially the same and had been the same all along: the wrong approach had been adopted. Mr Hunter too, at the close of the case when I indicated I would deliver a reserved judgment indicated he wished to make further submissions in writing after taking further instructions in case any policy matters arose. It seemed to me he had had long enough to consider these matters; the fact that policy considerations might arise had been more than foreshadowed by HH Judge Langan's observations in granting permission. Moreover the matter had come on for a substantive hearing before Langstaff J. Accordingly for these and other reasons I indicated at the time (not least still further added delay) I refused the request.
30. The central issue is fairly straightforward: were the decisions not to re-categorise the claimants as category D prisoners lawful?

The Regulatory Framework

31. The Prison Act, 1952 (as amended) empowers and enables the Secretary of State, amongst other things, to commit prisoners to such prisons as he may from time to time direct (s 12) and to make rules for the regulation and management of prisons and for the classification and control of prisoners (see s 47). The Prison Rules 1999 (as amended) require prisoners to be classified in accordance with directions of the Secretary of State (Rule 7).
32. From time to time this has led to a number of Prison Service Orders (PSOs) and Instructions (PSIs) in which the Secretary of State has set out mandatory guidelines and instructions for management of prisoners, staff and prisons, including their categorisation and allocation to prison.
33. The current system is that PSOs were issued until 31 July 2009 and those then in force remain in force until cancelled and replaced by a new system of PSIs gradually being brought into operation from 1 August 2009. PSIs have an expiry date.
34. Categorisation is concerned with the individual security risk assessment of each prisoner. Allocation is the system by which a prisoner is allocated to a prison (and a prison of itself the appropriate category) to that prisoner. Those relevant to the issue of categorisation and allocation of prisoners in this case are PSO 0900 and PSI 03/2009. Both are manadatory instructions which the prison authorities are required to observe.
35. PSO 0900 (which came into force on 1 September 2000) outlines in an introduction the key role of the instructions: "Categorisation and allocation of prisoners is a critical task. Effectively assigning prisoners to the correct security category and allocating them to an appropriate prison helps to ensure that they do not escape or abscond or threaten the control of establishments. It also means that prisoners are not held in conditions of security higher than are necessary."
36. It is impossible to set out the entirety of the PSO but, for present purposes the main relevant provisions are as follows

Para. 1.1.1 dealing with categorisation, lists category C and D prisoners as follows:

Category C: "Prisoners who cannot be trusted in open conditions, but who do not have the resources and will to make a determined escape attempt"

Category D: "Prisoners who can be reasonably trusted in open conditions"Para. 1.2 deals with categorisation: it provides that "prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would pose should they do so"

Para. 1.2.3 provides: "Every prisoner must be placed in the lowest security category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category".

37. PSI 03/2009 dealt with re-categorisation of prisoners from category C to D. It came into force on 24 May 2009 and expired on 25 May 2010. It re-stated guidance formerly contained in PSI 45/2004 (itself the subject of proceedings, see R (Bryant) v Secretary of State for the Home Department [2005] EWHC 1663 (Admin)). It appears to be intended to incorporate it into PSO 1000 The National Security Framework so is likely to have some relevance in fact for some time. PSI 03/2009 is, or was, relevant to this case at each of the dates of consideration of the claimants' categorisation. Again it is impossible to set out the whole document but the relevant parts are as follows:

Para. 3 provides: "The specific instruction on recategorisation to category D highlights the importance of weighing time left to serve in the assessment for category D and in particular the extent of any impact on public confidence should a long sentence prisoner abscond. Cases must be decided on their individual merits but to help those making the decisions the guidance is that prisoners should not normally spend any longer than 2 years in open prison before their expected release date."

Para. 8.1: "The purpose of the recategorisation process is to determine whether, and to what extent, the risks a prisoner presented at his or her last review have changed and to ensure that the prisoner continues to be held in the most appropriate conditions of security."

Para. 8.3: "It must be the aim that prisoners are held in the lowest possible security consistent with preventing escape or risk of harm to the public or to the security of the prison. However, for operational reasons, prisoners may be held in a prison of a higher security category, although the numbers of such prisoners must be limited by agreement between Regional Managers Custodial Services and PMU. On no account must a prisoner be allocated to a prison of a lower security category than the category assigned to the prisoner."

38. Paragraph 14 of PSI 03/2009 deals with re-categorisation from C to D and is worth setting out in full:

"14. RECATEGORISATION TO CATEGORY D.

14.1 It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions. In making the decision, governors must keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate and that the environment and regime opportunities available in open prison may not be suitable for a prisoner who is still many years away from possible release.

14.2 In addition to the risk assessment issues listed above (under Process) it is important to bear in mind the damage to public confidence in the Criminal Justice System if a prisoner serving a lengthy sentence were to abscond, particularly if the prisoner had spent a very short period of time in closed conditions and/or still has many years left to serve.

14.3 The risks to be assessed may conflict. Likelihood of abscond and risk of harm to the public and damage to public confidence if an abscond occurs will not necessarily be the same, and long sentence prisoners who statistically present an average or lower likelihood of abscond may represent a disproportionately high risk of harm to the public should they abscond and/or a high risk of damage to public confidence in the Prison Service's ability to safeguard the public by keeping prisoners in safe custody.

14.4 When assessing long sentence prisoners for open conditions it is vital to balance the risks involved if the prisoner were to abscond against the likely benefits to the prisoner of going to open conditions at this stage. Governors will need to consider whether the prisoner has made sufficient positive and successful efforts to reduce risk levels and that the benefits he or she would gain from allocation to open prison are worthwhile at this particular stage in sentence. Consultation with the Police Intelligence Officer should be an integral part of the assessment of any long-term prisoner.

14.5 Every case must be considered on individual merit but, in general, long sentence prisoners should not be recategorised and allocated to open prison  until they have served a sufficient proportion of their sentence in a closed prison to enable them to settle into their sentence and to access any offending behaviour programmes identified as essential to the risk reduction process.

14.6 In addition, prisoners should generally not be allocated to open prison :-

with more than 2 years to serve before their earliest release date ; and

in the case of prisoners subject to the release provisions of the Criminal Justice Act 1991 to whom the new duty to release at the half-way point in section 33(1A) does not apply (i.e. 'unconverted' 1991 Act prisoners with a PED), they must also be within 5 years of non-parole date (NPD).

Where prisoners are more than 2 years away from earliest release date they must still have their categorisation reviewed in line with the normal process and consideration given to whether there are exceptional circumstances to justify allocation to open prison at this stage. There is no right to have 2 years in open conditions before possible release." [My emphasis]

39. In addition paragraphs 15.1 and 15.2 were relied on in the case of Mr Mullally's appeals (above). These provide as follows:

"15. Timing

15.1 Prisoners who come under the release arrangements of the Criminal Justice Act 1991 as amended by the Criminal Justice and Immigration Act 2008

• Prisoners serving a sentence of 4 years or more who will be released automatically at the half-way point of sentence (CRD) pursuant to section 33(1A) of the above Act must generally be within 2 years of CRD

• Prisoners serving a sentence of 4 years or more who won't fall to be released automatically at the half-way point of sentence must generally be within 2 years of Parole Eligibility Date (PED) and 5 years of their non- Parole Date (NPD)

15.2 Prisoners who come under the release arrangements of the Criminal Justice Act 2003

• Prisoners serving a standard determinate sentence are automatically released at the half way point in their sentence (CRD) and must generally be within 2 years of CRD

• Prisoners sentenced to an Extended Sentence for Public Protection (EPP) prior to 14 July 2008 may be released on the recommendation of the Parole Board at the halfway point of the custodial part of their sentence (PED), or at the end of the custodial part of their sentence (CRD) and must generally be within 2 years of PED.

• Prisoners sentenced to an EPP on or after 14 July 2008 (and whose offence was committed on or after 4 April 2005) will be automatically released on licence halfway through the custodial part of their sentence (CRD), rather than halfway release being at the Parole Board's discretion and must generally be within 2 years of CRD.

Where a prisoner is serving a mixture of 1991 Act and 2003 Act sentences totalling 4 years or more the timings above will apply to whichever is the later – CRD, PED or NPD where these are applicable."

40. However which, if any, of these paragraphs in fact applied to Mr Mullally I was not told.

The Claimants' Submissions

41. The claimants argued that the initial decisions of June 2009 were flawed because the defendant had adopted an inflexible approach to the interpretation of the stated policies. The defendant accepted in its original skeleton argument that the claimants had an arguable case that the original decisions of June 2009 were flawed in the particular circumstance of each case. But, the defendant argued, that did not necessarily apply to the subsequent decisions. They could only be flawed if the same inflexible approach had been adopted in relation to them, otherwise since the decisions whether or not to re-categorise are made at six-monthly intervals the result would have been academic (see R (Hall) v First Secretary of State [2005] EWHC 3165 (Admin)).
42. It is important to note that the claimants do not challenge the unlawfulness of the policies themselves (contrast R (Adelana) v Governor of HMP Downview [2008] EWHC 1849 (Admin) where the inflexibility of the policy itself was in issue). Rather the claimants challenge the inflexible and incorrect manner in which they have been interpreted and applied.
43. But, argues Mr Elliott on behalf of the claimants, what the decisions show was that the defendant confused the process of categorisation with that of allocation. The two are quite separate steps. Categorisation is concerned with security – the risk of harm they present to the public; allocation is concerned with to which prison the prisoner is allocated in light of his categorisation. The two, he argues, should not be confused, still less conflated into one process.
44. Re-categorisation to category D does not, he submits, automatically mean that a prisoner is allocated to an open prison. The "exceptional circumstances" principle in PSI 03/2009 para. 14.6 operate at the allocation stage, not the categorisation stage. Prisoners are to be categorised according to the needs of security and control (PSO 0900, para. 1.2.3), i.e. the lowest possible security consistent with preventing escape or risk of harm to the public or to the safety of the prison (PSI 03/2009, para. 8.3). Thus a prisoner categorised as category D (as part of their categorisation process) may not yet be allocated to category D but remain in a closed prison. Viewed this way there is no conflict between PSO 0900 (see especially paras. 1.2.3 and 8.3) and PSI 03/2009 (paras. 14.4-14.6).
45. What happened in these cases, submits Mr Elliott, is that the defendant conflated the two separate stages of assessment (categorisation and allocation) and converted (or strictly speaking interpreted and applied) a flexible policy of categorisation into an inflexible policy of no re-categorisation by applying (to the categorisation review) the principles applicable to allocation in para. 14.6 of PSI 03/2009 where more than two years have to be served and no exceptional circumstances are shown. As particularly illustrated by the case of Mr Mullally (where there were no security aspects of concern raised with regards his last assessment) where the defendant must have confused the two stages or conflated them into one.
46. Accordingly, he submits, the decisions are all tainted and must be quashed. He seeks a fresh assessment approached on the right basis.

The Defendant's Submissions

47. The defendant accepts that the various PSOs and PSIs represent guidance as to how the Secretary of State's discretionary powers regarding the categorisation and allocation of prisoners are to be applied. Indeed he accepts that a failure to follow the guidance without proper justification may, in a given case, amount to an error of law as a departure from principles of consistency and equal treatment.
48. But, argues Mr Hunter for the defendant, there was no error here. There is no right to have open conditions whether of two years or more before release. The relevant terms of PSI 03/2009 read as a whole make it clear that an important part of the decision making process is to keep in mind the consequences of a decision to re-categorise a prisoner to open conditions: not only the low physical security and supervision levels but also the suitability for a prisoner who may still be some years from release and in particular the risks associated with absconding, not just the potential actual harm to members of the public but also the damage to public confidence in the prison system if a prisoner does abscond. There is, submits Mr Hunter, nothing inconsistent between the guidance given in PSI 03/2009 and the guidance in PSO 0900 para. 1.2.3 in this respect. Each case depends on its own facts. Each prisoner has to be assessed as to whether he is trustworthy and of a sufficiently low risk to be permitted to be allocated to open conditions.
49. In the case of Mr Mullally, argues Mr Hunter, it is clear that given he was assessed as a medium security risk, and there were security concerns (at least as at December 2009), the decision was not irrational or inflexible and justified viewing the matter as no reason to depart from the normal rule that prisoners with more than two years to serve should not be re-categorised to open conditions.
50. In the case of Mr Smith, the same reasoning applies.

Discussion

51. It is not in issue that the prison policies as set out in the various PSOs and PSIs are amenable to judicial review.
52. I agree with Mr Hunter's submissions as to the approach in general terms. The Secretary of State's policies as set out in the quoted instructions are intended to provide guidance in the exercise of administrative discretion and how the discretionary powers are to be exercised. I agree too with his submission that the length of time before release is relevant to the risk of absconding and may well be a legitimate matter to take into account in the categorisation process (the longer to the release date the greater the risk). Such was held to be a legitimate consideration in R (Manhire) v Secretary of State for Justice [2009] EWHC 1778 (Admin), HHJ Langan QC.
53. Properly applied I see nothing inconsistent between the guidance given in PSO 0900 and PSI 03/2009. Accordingly in my judgment Mr Elliott was entirely correct in not challenging the lawfulness of the orders. The two orders or principles of guidance stress the need for individual assessment in each case on its own merits (see para. 3 of PSI 03/2009). Flexibility is built in to the stated guidance. Thus "prisoners should not normally spend any longer than 2 years in open prison before their expected release date" (para. 8.3 of PSI 03/2009) and such "prisoners should generally not be allocated to open prison" (para. 14.6). These are matters of allocation, not categorisation. This is made clear by the concluding words of para. 14.6 quoted (and emphasised) above: the process of categorisation is separate from the process of allocation though I entirely accept Mr Hunter's perfectly valid points that the two cannot be entirely divorced and that many of the considerations applicable to one may apply to the other and may overlap: the consequences of categorisation from C to D (and the increased likelihood of being placed in open conditions) must be and is, in my judgment a legitimate consideration and one of the factors to be taken into account. But equally matters can be taken into account on allocation which are irrelevant on categorisation.
54. Mr Hunter accepted that there was a two stage process: categorisation and then allocation. They are, as Goldring J (as he then was) observed in R (Bryant) v SSHD [2005] EWHC 1663 (Admin) at paras. 27 and 57 "different things". Categorisation is about security and risk and maintaining public confidence in the prison system. Allocation is about placement.
55. The problem is with the words "at this stage" in those concluding words of para. 14.6. What is envisaged, in my judgment, is that the normal process of categorisation or re-categorisation is to be undertaken, but when it comes to allocation, bearing in mind that it is the normal rule that prisoners do not spend longer than 2 years in open conditions before their release date it is not surprising, when it comes to allocation, that "at this stage" consideration must be given as to whether there are "exceptional circumstances" justifying allocation to open conditions where a prisoner is not in his or her last two years. I thus also accept Mr Elliott's submission that, whilst category D prisoners are eligible for open conditions (as the very description and characteristics of the category make plain) it does not follow that a category D prisoner must necessarily end up in an open prison. There may be good reasons for that such as courses to complete, or lack of availability. (The former may also be a reason to retain a prisoner in category C as was held to be the case in R (Mitchell) v SSHD [2008] EWHC 1370 (Admin), Mitting J.)
56. The guidance however, is just that. I have already stated that there is flexibility built in to the policy. This means each case must be carefully and appropriately considered. The guidance in the PSOs and PSIs is not a "rule book". It is not to be followed blindly, slavishly, or even parrot fashion.
57. In these cases, however, allowing for the marked lack of witness statements mentioned above, and as particularly underlined by the case of Mr Mullally where there were no security concerns at his review in May 2010, I nevertheless have the distinct impression from a perusal of the completed prison forms, that the decisions were made hurriedly and the process of categorisation confused and conflated with that of allocation. The following features stand out:

Both prisoners were allowed to attend a Family Visitors' Day on 17 December 2009 which they could not have done had they not passed "strict criteria" and "shown a positive attitude to [their] sentence" (see above). There may be a perfectly reasonable explanation for what might be viewed as a potential inconsistency in risk assessment (I put it in the absence of evidence no higher than that) but none was provided.

The recourse in Mr Mullally's case to reliance on both para. 15.1 and 15.2 of PSI 03/2009 seemed on the face of it both inexplicable and illogical. So far as I can tell they have nothing to do with re-categorisation (though in an appropriate case the question of timing of release might well be relevant as regards, say, allocation). Why they were relied on remains unclear save to add to the confusion.

The re-sending to him of the same letter with a crude handwritten later date on it in response to his appeals in July and August 2009 (see above) struck me as unhelpful.

In particular I asked Mr Hunter what examples of "exceptional circumstances" would permit a prisoner against whom nothing adverse is known beyond the period of his sentence left to expire which might permit him or her to be categorised in category D outside the two year period. I am not sure I obtained a compelling answer beyond it is a matter for the governor's discretion. I agree it is, but where, as I have the impression here, that discretion is abrogated in every case where the prisoner has more than two years to serve; it does indeed appear to be the adoption of an inflexible approach to a flexible policy as Mr Elliott submits.

The security concerns that applied to Mr Smith and at one time to Mr Mullally may well have been or amounted to good reasons for not downgrading each prisoner's category. Aside from the reference to "drugs" they did not seem to me to amount to much and no details were forthcoming beyond that stated above.

The forms as completed by the prison authorities are barely legible and do nothing to help the prisoner understand why his review or appeal has been rejected.

58. All this however points to a certain administrative and bureaucratic haste and lack of thought. It does not mean that the completion of the forms may have been unlawful though the impression I have gained from the process was that there was indeed a confusion of categorisation and allocation which insofar as that happened would have been, in my judgment, unlawful. Other matters properly viewed as part of the categorisation process, such as matters of security must be within the purview of the prison authorities which are better placed than the courts to determine what are and are not matters of concern (but that is not to say they are not reviewable matters in appropriate cases).
59. Accordingly, on the evidence before me, I am not prepared to say that in so far as those other matters entered into the decision making process they rendered the decisions irrational or unlawful. I am simply left concerned about the application of the two year principle and no "exceptional circumstances" to justify departure from it. In so far as that appears to have been applied it does, in my judgment, appear to have been applied inflexibly, without thought, without consideration of the "individual merits" and parrot fashion.
60. Each prisoner is also subject, as I understand it to six monthly reviews. I am given also to understand that will continue albeit that PSI 03/2009 has now expired. In the circumstances there seems little point in quashing the decisions beyond expressing the hope that in both cases their review will be reconsidered as soon as reasonably possible in the light of this judgment and so far as may be relevant to whatever the current orders and instructions prescribe.

Conclusion

61. I have given the matter much thought as to what, if any order should be made. Plainly the decisions appear on the face of it, to some extent, to be flawed, particularly in those cases where the two year so-called rule and "no exceptional circumstances" alone were applied. The cases appear not to have received the consideration on the individual merits they deserved. However, particularly in those cases where other matters came into consideration, such as security or wing reports, as I have indicated I am not in a position on the evidence to say these were not matters of legitimate concern and which may well have influenced or at least been capable of influencing an individual merits based decision. In the circumstances, subject to any further submissions from counsel as to the precise form of order, I presently propose to make "No Order" on the applications. I do not think this is wholly unjust. Each prisoner has his case reviewed every six months. This judgment may hopefully prompt an earlier review. Events and time will have supervened. Lest however the point should be thought otherwise I do not consider the arguments entirely academic. In my judgment both claimants had a justifiable complaint and an understandable and justifiable sense of grievance in the manner their reviews had been conducted.