Vary & Ors, R (on the application of) v Secretary Of State For Home Department

MR JUSTICE BEATSON: This case concerns the way a revised Prison Service policy concerning the categorisation of prisoners as category D prisoners who can reasonably be trusted in open conditions was applied to the claimants, two prisoners who had been placed in category D in 2003, but who, as a result of the revised policy, were reclassified as category C and are now in a closed prison.

In December 2003 a prisoner, Roderick MacLean, who had served some six and a half years out of a 21 year sentence and was in an open prison and thus a category D prisoner, escaped and was subsequently found dead. Following an investigation into the incident, in January 2004 the Prison Service's Director of Operations decided to review the categorisation of prisoners in open conditions who had over five years of a determinant sentence to serve. There were 22 such prisoners, including the claimants. Pending such review, these prisoners were transferred to closed prisons, and, in the light of the review, 20, including the claimants, were recategorised as category C prisoners. The decision in relation to the claimants was made on 5th February 2004.

Following an unsuccessful appeal to Stephen Moore, an assistant director of the Prison Service, on 30th March the claimants and two other prisoners who had been reclassified launched this application. By the time the papers came before Mitting J one of the claimants, Martin Vary, had been returned to open conditions. On 9th June Mitting J granted permission in respect of the other three claimants and ordered an expedited hearing. Since the grant of permission another claimant, Robert Tarrant, has been recategorised and returned to open conditions. The claim proceeded in respect of two of the four claimants, Michael Riordan and John Caetano. Robert Tarrant's application was technically still extant since it was neither withdrawn nor disposed of in any other way following the grant of permission, but Mr Blake, who appears on behalf of the claimants, made no submission in respect of him, and today the parties have agreed that his application should by consent be withdrawn.

It is argued by Mr Blake on behalf of the claimants that the decisions to recategorise and reallocate them as a result of the review following the escape of another prisoner from a different prison were irrational, Wednesbury unreasonable, procedurally unfair, and in breach of the claimants' legitimate expectation that they would retain their status as category D prisoners provided they complied with all the conditions of such status. At the core of the challenge is a submission on behalf of the claimants that the reasoning given by the Prison Service for the change of their status fails to demonstrate that any proper consideration was given to their individual circumstances.

Miss Gallafent, on behalf of the defendant, does not accept that there was any failure to give consideration to individual merits of each claimant's case. She submits that it was not irrational to review the previous policy in the light of the concerns generated by Roderick MacLean's escape and to re-examine the cases of the claimants in the light of the new policy. She relies in particular on the decision in Re Findlay [1985] 1 AC 318.

The Facts. The evidence before the court consisted of three statements dated 19th January, 4th April and 18th August by Miss Salvi, the claimants' solicitor, a statement by each of the two claimants, which remained unsigned and undated at the time of the hearing, and a statement by Stephen Moore, an assistant director of the Prison Service who conducted the investigation into the Mr MacLean's escape and considered the claimants' appeals against their recategorisation as category C prisoners.

Michael Riordan is 64 years old. In June 2000 he was sentenced to 20 years' imprisonment for conspiracy to import drugs. He had been remanded in custody since 1997. His non-parole release date (“NPD”) is 2010 and his parole eligibility date (“PED”) is April 2007. Prior to March 2003, when he was recategorised as a category C prisoner, he had been a category B prisoner. He was recategorised as a category D prisoner in November 2003 and permitted to travel from HMP Elmley in Kent to HMP Springhill in Aylesbury without an escort. He has no adjudications recorded against him at any time during his sentence and is on the higher enhanced status under the Incentives and Earned Privileges Scheme. He applied for permission for a town visit on temporary leave some three weeks after arriving at HMP Springhill. His application was granted following a review and assessment under the Prison Rules, and he was permitted to leave the prison for eight hours to visit family members. He did this on 5th January 2004 when he took his two grandchildren to the park. A further town visit was arranged following this.

On 16th January 2004, however, he and six other prisoners at HMP Springhill, including Mr Caetano, were informed that their cases were to be the subject of a review by the Prison Service. They were transferred with immediate effect and without their property or personal possessions to HMP Bullingdon, a closed prison. Following the review and his reclassification as a category C prisoner, Mr Riordan asked to be sent to HMP Coldingley and was transferred there on 1st March 2004.

Mr Caetano, aged 52, is also serving a 20 year sentence for drug importation. His parole eligibility date is August 2008 and his non-parole date is 2011. Mr Caetano was placed in category D on 4th November 2003 after having been a category C prisoner for 17 months; that is since about June 2002. On 22nd December 2003 he was escorted from HMP Elmley to HMP Springhill, where he remained until his transfer to HMP Bullingdon in January 2004. Following his reclassification as a category C prisoner, he was, at his request, returned to HMP Elmley on 1st March 2004.

The results of the reviews of the claimants were entered on form RC1, the recategorisation form. Part 2 of that form deals with “review of categorisation to a prison of a higher security category”. The notes state:

“Recategorisation to a higher category of prison will normally be non-routine and in response to a significant change in risk or behaviour.”

The same two officers conducted the reviews of the two claimants and those of Mr Tarrant and Mr Vary. In all four cases the box headed “state how risk has increased” contained the same words, that is:

“When category D was approved insufficient weight was given to length of sentence, severity of offence and time left to serve to PED/NPD.”

Both claimants are aggrieved by the decision to deprive them of their category D status which they consider they earned throughout merit throughout their sentences. Both their statements state in identical terms:

“I do not believe that my positive behaviour, compliance with the prison system and motivation to address my offending behaviour has been considered by the Prison Service, nor has my conduct at HMP Springhill been taken into consideration.”

They also state:

“The decision to return me to closed conditions has been a set-back to both myself and my family.”

Following their transfer to closed prisons, the claimants' solicitors wrote seeking information as to the reasons for the transfers. The letters stated the solicitors were:

“... concerned that exemplary prisoners had been transferred as part of what appears to be a blanket policy with no proper consideration of the merits of each individual prisoner's case.”

A letter before action was written to the Director of Operations of the Prison Service on 22nd January 2004. This set out the merits of each claimant's case and asked that they be returned to open conditions from where a formal review could be undertaken.

Ms Liz Prior, of the Prison Service's Communications Unit, wrote to the claimants' solicitors on 2nd February stating that the review of the categorisation decisions was being undertaken centrally, supported by information from the holding establishments. She stated that:

“Each case will be considered individually taking account of the prisoner's sentence, previous convictions [if any], and categorisation history. It will also take account of attendance on offence related programmes, their adjudication history and progress through the Incentives and Earned Privileges scheme. It is possible that the individual review may lead to a return of some of these prisoners to open conditions.”

The solicitors were formally advised of the outcome of the review by a letter dated 10th February. The reclassification form, form RC1, stated that it was possible to appeal the recategorised decisions to Mr Moore. By a letter dated 16th February 2004 the claimants' representatives submitted appeals in respect of the four prisoners originally involved in the present application.

Mr Moore sent a holding letter on 26th February and on 11th March wrote affirming the decisions. After stating that the decision to remove the prisoners from open prisons and recategorise them as category C was done following a Prison Service review of all adult male sentenced prisoners with five years or more left to serve to their non-parole date of release, he dealt with the individual cases. He said of Michael Riordan:

“Again, your background summary is agreed. [He had previously stated that he agreed with the summary of Mr Tarrant's background given in the solicitor's letter of 16th February]. Mr Riordan is serving a 20 year sentence for a very serious offence. He has over six years left to serve to his NPD and was made category D in November 2003, after only a little over a year as category C. I again conclude that the decision to recategorise your client to category D was premature and that the seriousness of the offence, the long sentence passed down by the court and the time left to serve should have informed thinking about Mr Riordan's suitability for category D more than it did.”

Of Mr Caetano he said:

“Mr Caetano is also serving a 20 year sentence for an offence involving drugs importation, although I understand his PED to be August 2008 and his NPD to be December 2011 and not the dates given in your summary. But in any case, Mr Caetano should have spent longer as a category C prisoner, and I agree with the decision to recategorise him accordingly.”

Miss Salvi was absent from the office and did not receive this letter until 1st April. She considered that the letter did not address the issues she had raised in her letter dated 16th February and sent a further letter dated 4th April. By this time the application for permission to move for judicial review had been lodged.

Mr Moore's evidence on behalf of the defendant is that Roderick MacLean's case highlighted as a relevant factor to be taken into account when considering categorisation at category D that the incentive to abscond when the expiry of the determinant sentence is a considerable period away may be much greater than it is for those closer to release, and that the escape of a prisoner serving a long sentence would create much greater public concern and raise questions about the weight the Prison Service gives to public protection issues. Mr Moore states:

“The review took into account the fact that public confidence in the justice system would be likely to be undermined by the placement of prisoners with a long period to serve in open conditions many years ahead of their release dates.”

He states that the review concerned prisoners previously categorised as category D who had five years or more of a determinant sentence still to serve. Pending the review they were moved to close conditions, and all establishments where they were detained were asked to provide information in order that the reviews could be undertaken centrally. Mr Moore states that he had not been involved in the individual decisions, but that in each case the reviews took into account the prisoner's sentence, the prisoner's previous convictions, if any, and the prisoner's categorisation history. These were, as noted, the factors also referred to in Ms Prior's letter.

Mr Moore's statement also deals with the appeals which he considered. He states:

“16 prisoners appealed. Of those I upheld two appeals. I did not uphold the appeal of either Mr Riordan or Mr Caetano. My reasons were as follows. In the case of Mr Riordan I considered that the decision to recategorise him to category D after only a little over a year as category C was premature. I took into account the seriousness of the offence, the very long sentence passed down by the court, 20 years, and the time he still had left to serve, six years. In the case of Mr Caetano I considered that he also should have spent longer as a category C prisoner, having spent only 17 months as such, and I agreed with the decision to recategorise him accordingly. I took into account the nature of his offence, involvement in the supply of class A drugs, the length of his sentence, time left to serve and the relatively speed with which he achieved category C status, 30 months.”

Mr Moore then in his statement explains the position of Martin Vary and Robert Tarrant, who are no longer proceeding with their claims. In both cases he states that at the time of the review they were recategorised to category C because it was considered that when category D had been approved insufficient weight had been given to the length of sentence, the severity of the offence, and the time left to serve, five years to non-parole date. In considering Vary's appeal he took into account the fact that Vary had a number of previous convictions. In Tarrant's case he concluded that the decision to allocate him to category D:

“... had been premature and had failed to attach due weight to the nature of the offence, the length of the sentence and time to serve, which were all factors which may impact on a prisoner's motivation to escape or abscond.”

Mr Moore states that both cases were reviewed once Vary and Tarrant had less than five years to go to their non-parole date of release and both were then returned to open prisons. In fact Vary and Tarrant were reviewed two and three months after they had been put back into category C because they were only just over the five year mark at the time of the general review. Miss Gallafent submitted that although there is this temporal coincidence, it was not simply because they had passed the five year period that they were returned. There was, she submitted, a proper review by a prison governor of their cases.

The Legal Framework. This was not in dispute. It is set out in paragraph 10 of the defendant's grounds for resisting the claims and in Mr Blake's skeleton argument. Section 12 of the Prisons Act 1952 provides, inter alia, that prisoners may be placed where the Secretary of State directs. By section 47(1) of the 1952 Act the Secretary of State is given power to make rules:

“... for the regulation and management of prisons ... and for the classification, treatment employment discipline and control of persons required to be detained therein.”

By Rule 7 of the Prison Rules 1999:

“Prisoners shall be classified in accordance with any directions of the Secretary of State having regard to their age, temperament and record and with a view to maintaining good order and facilitating training, and in the case of convicted prisoners of furthering the purpose of their training and treatment as provided ...”

The current administrative policy on categorisation and allocation of prisoners is set out in Prison Service Order 0900 (“PSO 0900”), apparently last amended on 24th July 2000. Paragraph 1.1.1 of the policy document states that category C is for 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 is for prisoners who can be reasonably trusted in open conditions. Paragraph 1.2 sets out the principles of categorisation.

Paragraph 1.2.1 provides:

“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. In the majority of cases, consideration of these two factors alone will be sufficient to determine the prisoner's security category. However, a small number of prisoners while presenting little risk of escape or risk to the public, and who would ordinarily be assigned to a low security category will, because of their custodial behaviour, require a higher category so that they may be sent to a prison with levels of supervision commensurate with the risk they pose to control.”

The paragraph also states that:

“The security category must take account of the above considerations alone.”

Paragraph 1.2.3 provides:

“Every prisoner must be placed in the lowest security category consistent with the needs of security and control.”

Chapter 2 of the policy guidance deals with the recategorisation of adult males. Section 2.1.1 states:

“By the time a prisoner is eligible for review, staff will know much more about him than when he was first categorised by OCA staff in the local prison. However, while his circumstances may have changed, the matters which are relevant to a recategorisation are the same as those for an initial categorisation. The aim of recategorisation is to use this information to establish whether there has been any clear change in the risk the prisoner poses. More specifically, staff must answer two important questions: (1), is the prisoner more or less of a risk to the public than when he was first categorised; and (2) is he now more or less likely to escape or abscond. It is not necessary to prove continued or increased risk in both areas to retain the prisoner in his present category or upgrade him. There will be prisoners who pose less risk of escape than they once did, but who present such a serious threat to public safety that we cannot accept even the smallest chance that they will abscond or escape.”

Paragraph 2.2.1 provides that:

“The review whether conducted by a board, a panel or a governor must consult the completed RC1 forms, warrants and any pre-sentence reports, OASys forms where available, the security file and any information held in the Security Intelligence System, Sentence Plan, and any end of course reports completed after offending behaviour programmes such as SOTP.”

By section 2.3 the section of the form dealing with assessment of escape must be completed by someone with full access to the Prison Security Intelligence System.

Paragraph 2.3.6 notes that in relation to one of the questions:

“... the longer the prisoner has left to serve then the greater the risk that he will attempt to escape or abscond.”

Section 2.5 deals with “Non-routine Recategorisation Reviews”. Paragraph 2.5.1 states that:

“Some prisoners may need to have their security category reviewed outside the normal review cycle, and often at short notice, because of a sudden change in their circumstances.”

The examples given are a successful appeal and reduction in sentence length, or the behaviour of the prisoner.

Paragraph 2.5.3 states that in all cases the form RC1 must be used to record:

“... in full detail how the prisoner's circumstances have changed since his last review and why his current security category and allocation are no longer appropriate.”

Miss Gallafent accepted that the procedure used did not follow the guidance in PSO 0900. She observed that the guidance does not attempt to provide advice for every case or situation. In its introduction it states this in paragraph 18 and advises staff in doubt over general policy issues, rather than categorisation of individual prisoners, to seek advice from the Security Policy Unit. In any event, Miss Gallafent relied on the fact that whilst setting out administrative policy Prison Service orders have, in the words of Livingstone, Owen and Macdonald's Prison Law 3rd Edition paragraph 1.5, “no legal status whatsoever”.

I observe that, although they are not legislation, they are, nevertheless, produced within the administrative structure responsible for prisons and provide guidance as to how discretion is to be exercised and can, as other policy statements have been, be referred to as such by courts when considering the exercise of discretion pursuant to statutory powers.

The Parties' Submissions. Paragraph 14 of the grounds in support of this application state that it is evident from the reasons given by the governors in their categorisation review forms that no regard has been taken of the individual merits of each claimant's case. Mr Blake argued that it was also the case that Mr Moore did not consider the claimants' individual positions. He submitted that the three factors Mr Moore listed, the prisoner's sentence, any previous convictions, and the prisoner's categorisation history, did not show that there had been a careful individual consideration of the cases. He submitted that Mr Moore was looking at the application of the new policy, which he submitted was, in substance, not really different from the old policy, notwithstanding the general guide that prisoners should not be allocated to category D where they had more than five years to their non-parole release date. This was, he said, because the policy in PSO 0900 also took account of time left to serve and the seriousness of the offence. In his skeleton argument this submission is placed under the heading of “Irrationality and Wednesbury Unreasonableness”.

Under that heading Mr Blake also submitted that since categorisation is a matter primarily concerning a consideration of the risk of absconding, risk of further offending and the custodial behaviour of prisoners, the decisions to recategorise these claimants are irrational and/or Wednesbury unreasonable. He argued that the claimants had individually demonstrated full compliance with the prison regime to the extent that they enjoyed enhanced category D status in open conditions and held positions of trust. He submitted that the assessment that led to their being allocated to category D had been conducted properly in accordance with the then published policy and procedures and there is nothing in the evidence before this court to suggest that the original decision maker had failed to give any, or any proper, weight to such considerations at the time of allocating them to category D. Moreover, he submitted that nothing had occurred since that assessment that would allow the defendant to conclude that the risk of escape by these individual claimants had increased.

Mr Blake also submitted that in deciding whether the claimants should be reclassified the defendant did not consider their conduct, and, in particular, their conduct since allocation to category D. In the case of Mr Riordan this included the fact that he had been permitted to make his own way to HMP Springhill unescorted, that he had been assessed under Rule 9 of the Prison Rules 1999 as suitable for temporary release, was temporarily released on one occasion, and was permitted to make arrangements for a further temporary release which was cancelled due to his move to HMP Bullingdon.

Mr Blake also submitted that the claimants had a legitimate expectation to be treated in accordance with published policy and law. The then stated policy was that contained in PSO 0900. The claimants had been awarded the status of category D and had complied with all the requirements of that status. He argued that they had a legitimate expectation that they would retain such status, provided they complied with all its conditions, and that the defendant's decision was taken in contravention of that policy and expectation.

He submitted that the claimants' cases are distinguishable from those relied on by the defendant, ReFindlay [1985] 1 AC 318 and R v Secretary of State for theHome Department ex parte Hargreaves [1997] 1 WLR 407, because in those cases, which also concerned prisoners, what was being considered was the legitimacy of a change in policy which would affect a future decision. In Re Findlay the future decision was an anticipated future release on licence and in ex parte Hargreaves it was an anticipated entitlement to apply for temporary release on home leave in the future. Those cases, he submitted, concerned a future hope. In the present case the claimants had already been awarded category D status under the old policy. He submitted that it was irrational, procedurally unfair and contrary to their legitimate expectations to apply the new policy to their cases retrospectively.

Mr Blake also submitted that the defendant's approach was procedurally unfair. Miss Gallafent argued that no procedural error had been identified. I agree. The matters relied on by Mr Blake under this head of the challenge concerned the defendant's decision to review the claimants' categorisation and the substance of the decisions rather than the procedure followed by the defendant and in my judgment take the matter no further than the other grounds advanced on behalf of the claimants.

I turn to the submissions made on behalf of the defendant. Miss Gallafent argued that, although the reasons given on the claimants' categorisation review forms are in identical terms, it cannot be inferred from those reasons that no regard was taken of the individual merits of each claimant's case. She relied on Ms Prior's letter of 2nd February, to which I have referred, and on Mr Moore's statement that the cases of each of the 22 prisoners who were subject to review were considered on an individualised basis by a senior manager and an operational manager in the prison service, taking into account the prisoner's sentence, the prisoner's previous convictions, if any, and the prisoner's categorisation history. She also relied on the subsequent review of the claimants' cases by Mr Moore who set out the outcome of his review in his letter of 11th March with specific reference to the individual circumstances of each case.

With regard to the submissions based on irrationality or Wednesbury unreasonableness, Miss Gallafent did not accept that the new policy only differed from the former policy in relation to the number of years left to serve. It dealt with the need to take account of the damage to public confidence in the prison service if a prisoner serving a lengthy sentence were to abscond and it gave greater emphasis to the length of time left to serve before allocating a prisoner to category D.

Her written submissions on this state:

“12.

In this context, the claimants expressly accept that (i) the defendant is entitled to review his policy at any given time ... and (ii) the length of sentence a prisoner has left to serve might be viewed as a relevant consideration in respect of it forming an incentive for him to abscond. Further, the claimants implicitly accept that the lawfulness of the defendant's revised policy, and, in particular, do not seek to challenge the relevance as a factor of the potential undermining of public confidence in the justice system by the placement of prisoners with a long period to serve in open conditions many years ahead of their release dates.

13.

The claimants, though, argue that the revised policy should not have been applied to them, where there had been no change in their individual circumstances ... The short answer to this argument is: why not? The claimant do identify any legal or factual basis to support their argument that the policy should not apply to them.

14.

In any event, there is plainly nothing irrational or unreasonable in applying the revised policy by way of a review of prisoners in the position of the claimants, particularly where the revised policy takes into account not only the individual circumstances of the prisoner, but also the potential impact on public confidence in the justice system of the categorisation decision.”

She submitted that the defendant's concern with the time a prisoner spent in category C was legitimate and fitted with the idea of sentence progression.

Miss Gallafent also submitted that Mr Blake's argument that no consideration was given to the claimants' conduct since their allocation to category D was unsustainable. She relied on the fact that evidence as to the first claimant's achievements and behaviour and the second claimant's record was set out in Miss Salvi's letter of 16th February 2004, seeking a review of the recategorisation decisions, and that Mr Moore's response, dated 11th March 2004, expressly confirmed in the first claimant's case that the background summary was agreed.

Miss Gallafent also submitted that the contention that there was no evidential basis for the conclusion that the previous classification had not taken account of the unexpired portion of the sentence did not, since the weight of that was less at that time, take the matter any further. The very purpose of the review, she argued, was to consider whether previous decisions as to categorisation of prisoners with a lengthy period of a determinant sentence left to serve had been made inappropriately, specifically taking into account the recently highlighted relevance of the length of sentence left to serve on the likelihood of absconding and the effect of public confidence in the justice system of the placement of such prisoners in the open estate. She submitted that it logically followed that a decision taken under the previous policy, which did not emphasise such factors, would not have given them the weight accorded under the revised policy.

Miss Gallafent submitted that the challenge based on the claimants' legitimate expectations was also misconceived. There is, she argued, no legal or factual basis for a legitimate expectation that the claimants would retain category D status provided they complied with all its conditions. Such an expectation would wholly fetter the defendant's discretion to review and apply his policy as to categorisation from time to time, and would run contrary to the proper approach to legitimate expectation in this context established by the House of Lords in Re Findlay [1985] 1 AC 318, and applied in R v Secretary of State for the HomeDepartment ex parte Hargreaves [1997] 1 WLR 917. She submitted that Re Findlay shows that the fact that the new policy did not exclude existing prisoners does not render it reviewable and that it does not support a bright line being drawn between past and future decisions. It was recognised, she submitted, in Re Findlay that transfer to an open prison is a stage on the road to parole, a prelude to release.

Analysis. I deal, first, with the submission that the reasoning given for the change in the claimants' status fails to demonstrate that any proper consideration was given to their individual circumstances. Mr Blake argued that the policy precluding category D status where there is more than five years before the non-parole date of release was applied without regard to the claimants' individual circumstances. He relies in support of this on the fact that within two and three months respectively of their reclassification back to category C Vary and Tarrant were reclassified as category D once they had less than five years left to serve.

The claimants' categorisation review forms were completed by the same two officers. The fact that the reasons given on both forms, and on Vary's and Tarrant's, are in identical terms does not give confidence that regard was taken of the individual merits of each case. However, Ms Prior's letter, dated 2nd February, states “each case will be considered individually”, and both that letter and Mr Moore's statement, which I have set out earlier in this judgment, list the factors concerning the individual prisoners that the defendant states were taken into account.

Moreover, Mr Moore's letter, dated 11th March 2004, makes it clear that he took into account the specific circumstances relating to the claimants which he set out in that letter. In these circumstances, it cannot be said that no regard was taken of the individual position of the claimants. The question is whether, notwithstanding that account was taken of the listed matters, the policy was applied in an impermissibly inflexible or unfair way, or whether in the claimants' reviews factors which should have been taken into account were not, or factors which should not have been taken into account were taken into account.

It is convenient to consider the submissions based on legitimate expectation before considering whether the policy was applied in an impermissibly inflexible way, or whether relevant factors were not considered or irrelevant factors considered. It is common ground that the defendant is entitled to adopt a revised policy at any given time. In the present case the revised policy accords increased importance in recategorisation exercises to the length of sentence a prisoner has left to serve and to the potential undermining of public confidence in the justice system by the placement of prisoners with a long period to serve in open prisons many years ahead of their release dates. Neither of these features of the new policy were as such challenged by the claimants.

The length of sentence a prisoner has left to serve was, as Mr Blake recognised, indeed submitted, a factor under the previous policy, PS0 0900, see paragraph 2.3.6. Moreover, the relevance of potential undermining of public confidence as a factor in the categorisation of prisoners and their transfer to open prisons was recognised by this court in R(Payne) v Secretary of State for the Home Department [2004] EWHC Admin 581. The claimants' submission is that the new policy should not have been applied to them because they had been categorised as category D prisoners and had a legitimate expectation that they would retain this provided they complied with all its conditions which they had.

The impact on the claimants of the review and of their abrupt removal to closed prison pending that review can surprise no one. Their excellent prison records were greatly to their credit and the prior practice in the administration of categorisation decisions understandably led them to conclude that, provided they observed the rules relating to category D prisoners, they would remain in open conditions until their eventual release. The question, however, is whether their factual expectations were “legitimate”, in the sense that the defendant's discretion to review and apply revised policies as to categorisation could not extend to them either at all, as Mr Blake submitted, or in the absence of a sufficient over ridding public interest.

The decisions in Re Findlay and ex parte Hargreaves represent significant obstacles to the claimants' contentions. Re Findlay involved a new Home Office policy, announced by the then Secretary of State on 11th October 1983. He stated that from that time he would refuse in all but the most exceptional cases to exercise his power to release on licence certain classes of offenders until the final months of their sentence. The policy was challenged by four prisoners who were affected by it. Two of these prisoners had previously been transferred to an open prison, in one case nine months before the change of policy was announced and in the other ten months before the announcement. Both prisoners were moved back to a closed prison on the day the change of policy was announced.

Lord Scarman at page 338 asked what their “legitimate (emphasis added) expectation” was. His answer to the question was:

“Given the substance and purpose of the legislation provisions governing parole, the most that a convicted prisoner can legitimate expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some case be restricted so as to hamper, or even to prevent, changes of policy. Bearing in mind the complexity of the issues which the Secretary of State has to consider and the importance of the public interest in the administration of parole I cannot think that Parliament intended the discretion to be restricted in this way.”

Ex parte Hargreaves concerned a change in the home leave policy, announced by the then Home Secretary in November 1994. Whereas prisoners were previously eligible to apply for temporary release when they had served one third of their sentences, the new policy restricted the privilege to prisoners who had served at least one half of their sentence. A challenge by the prisoners failed. The Court of Appeal held that the only legitimate expectation they might have was that their applications for home leave would be examined individually in the light of the policy applying at the date of the application. Pill LJ at page 925 stated that the prisoners:

“... could have no legitimate expectation which defeats the respondent's new policy upon home leave and its application to them.”

Hirst LJ considered Re Findlay was dispositive of the case in ex parte Hargreaves, and that submissions based on R vMinistry of Agriculture, Fisheries and Food ex parte Hamble (Offshore) Fisheries Limited [1995] 2 All ER 714, that the principle of legitimate expectation could afford substantive protection going beyond Wednesbury principles, were “heresy”, see page 921.

Mr Blake sought to distinguish these cases on the grounds I have set out. In my judgment, however, notwithstanding certain attractions (see, for instance, the distinction drawn in McInnes v Onslow Fane [1978] 1 WLR 1520 between forfeiture cases and application cases in the context of a right to a hearing), Mr Blake's suggested sharp distinction between a change in policy affecting a future decision and a past decision is difficult and ultimately unsustainable. Clearly where a decision has been taken by a public authority in pursuance of an existing policy the factual expectation that it will not be reversed may be different and stronger than an expectation arising from such a policy that a favourable decision will be taken in the future. Nevertheless, the principles of certainty, reasonable predicability and fairness that underlay the concept of legitimate (emphasis added) expectation underlay both situations. Even in the case of something which formally involves a future decision there may in substance have been significant and detrimental reliance before the decision which may be irreversible.

In Hughes v Department of Health and Social Security [1985] 1 AC 776, in which two claimants had transferred to the civil service from local authority employment in 1948 on the basis that, although their established service was terminable at the age of 60, they would normally be allowed to continue until the age of 65, subject to continued efficiency, they were held subject to a change of policy. The change of policy was announced in 1981, when it was stated that from April 1983 employees in their grade would be retired at the age of 60. Their arguments that they had been unfairly dismissed were rejected.

In the House of Lords it was held that their reasonable expectation that they would retire at 65 only lasted as long as the departmental circular announcing that policy remained in force. Lord Diplock at 788 stated:

“Administrative polices may change with changing circumstances, including changes in the political complexion of governance. The liberty to make such changes is something that is inherent in our constitutional form of government.”

Although formally the decisions as to their retirement dates were future decisions at the time the policy was changed, what was crucial to them was their decision to transfer to the civil service and remain in it in reliance on what they had been told all those years ago. Nevertheless, it was held that the government was entitled to apply its new policy to them.

The distinction proposed by Mr Blake does not sit comfortably with the importance accorded by the courts to the liberty to make policy changes and their recognition that legitimate expectations should not fetter the executive's policy making powers. For a recent example of this recognition see R v North and East Devon Health Authority exparte Coughlan [2001] 1 QB 213 paragraph 82, considered further later in this judgment.

The difficulty of the suggested distinction between past and future decisions is shown by the decision of the Court of Appeal in R v Secretary of State for Education and Employment ex parte Begby [2001] 1 WLR 1115. That case concerned statements made by the then opposition party that children already holding places under a state funded assisted places scheme would continue to receive support in their education. The claimant was funded under the Assisted Places Scheme and she was receiving primary education at a school which educated children up to the age of 18. Following a change of government, there was a change of policy. The new policy was that those children receiving primary education with support from the Assisted Places Scheme would be supported only until the completion of the primary stage. It was held by the Court of Appeal that the earlier statement did not preclude the withdrawal of support from the claimant when she completed the primary stage of her education at the school.

The difficulty of the proposed distinction can also be illustrated by the facts of Re Findlay. There is no suggestion in that case that the two prisoners who had previously been transferred to open prisons, but were re-transferred to a close prison on the day the change of policy was announced, had any legitimate complaint about that fact.

The view that the suggestion that the principle of legitimate expectation could afford substantive protection going beyond the Wednesbury principles was heresy can no longer stand in the light of the decision in R v North and East Devon Health Authority ex parte Coughlan [2001] 1 QB 213. In that case it was recognised that there can in an appropriate case be an enforceable expectation of a substantive benefit. The court, however, stated that it would only give effect to a legitimate expectation raised by a promise, a representation, or a practice within the statutory context in which it has arisen. Moreover, most cases of an enforceable expectation of a substantive benefit are likely to be cases where the expectation is confined to one person, or a few people, giving the promise or representation the character of a contract: see paragraph 59. Ex parte Coughlan also recognised the importance of:

“... legitimate expectation ... [not] jeopardising the important principle that the executive's policy-making powers should not be trammelled by the courts.”

The court stated at paragraph 82:

“Policy being (within the law) for the public authority alone, both it and the reasons for adopting or changing it will be accepted by the courts as part of the factual data -- in other words, as not ordinarily open to judicial review. The court's task -- and this is not always understood -- is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power.”

The limits of judicial review of changes of policy by a public authority were also addressed by Laws LJ in R vSecretary of State for Education and Employment ex parteBegbie [2000] 1 WLR 1115 at 1130 to 1131. His Lordship stated:

“In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of the policy-maker which they cannot wear.”

His Lordship distinguished such situations from those in which the case's facts are discrete and limited, affecting few individuals and with no wide ranging issues of general policy.

In my judgment ex parte Coughlan does not assist the claimants. First, although the reviews here affected only a small group of prisoners, i.e the 22 with more than five years to go before their non-parole date of release who had been placed in category D, no clear representation or promise in the terms argued for by the claimants has been shown. Secondly, part of the reason for the change of policy and the review of the claimants' classifications concerned the need to maintain public confidence in the system and thus raised the wider issues of general policy, in respect of which both in Coughlan and in ex parte Begbie the courts have held the scope of judicial review is narrow. Thirdly, ex parte Coughlan, while recognising that in principle the expectation of a substantive benefit might be enforceable, stated that as a result of the decisions in Re Findlay and ex parte Hargreaves prisoners only have limited legitimate expectations in relation to the effect of changes of policy concerning early release. The public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. The court in ex parte Coughlan explained that this was because in that statutory context that was the only legitimate expectation the prisoners: see paragraphs 57 and 76 of the judgment.

Moreover, the court stated that in such cases a court exercising the supervisory jurisdiction by way of judicial review is confined to reviewing the decision on Wednesbury grounds. In short, the limited nature of the legitimate expectations that arise in the context of policies concerning prisoners was reaffirmed in ex parte Coughlan, although that case, of course, concerned an entirely different context, residential homes.

The limited nature of the legitimate expectation recognised in Re Findlay in relation to release on licence must, however, now be seen in the light of decisions establishing that it is impermissible to increase a prisoner's tariff period after it has been duly fixed, save, perhaps, in expectation circumstances: see R v Secretary ofState for the Home Department ex parte Hindley [2001] 1 AC 410, R v Secretary of State for the Home Department ex parteAnderson [2003] 1 AC 837 at paragraph 13 and Sales and Steyn “Legitimate Expectations in English Public Law: An Analysis” PL [2004] 564 at 585.

This may be an indication that the time is approaching in which it will be appropriate to revisit the limited nature of the expectations engendered by the application of prison service policies that are regarded as “legitimate” for the purpose of the principle of legitimate expectation. In the present case, however, in the absence of a firm promise or representation in the terms argued for by the claimants and given the width of the issues raised by the changes of policy it is not appropriate to do so.

Accordingly, in my judgment, the claimants do not have a legitimate expectation that they would be excepted from a new policy, otherwise lawfully adopted by defendant at all, or save in the face of overriding public interest.

The two remaining submissions on behalf of the claimants are, first, that the defendant did not, when recategorising the claimants as category C take into account and consider their conduct, particularly their conduct after they had been allocated to category D. Secondly, that there was no evidential basis for the conclusion that the previous classification did not take account, or sufficiently take account, of the unexpired portion of their sentence.

In relation to the latter submission at the hearing I explored with Miss Gallafent whether the defendant's case was that it was correcting an error made at the time, or whether the statements in the claimants' RC1 forms and Mr Moore's decision, that when category D was approved insufficient weight had been given to length of sentence, severity of offence and time left to serve to PED/NPD were the result of the application of the new policy. She made it clear that it was the latter. She accepted, as I have noted, that the process used did not follow PSO 0900.

In these circumstances, the absence of anything in the evidence to suggest that the original decision maker had failed to give any, or any proper, weight to those factors on the policy then in force in my judgment does not assist the claimants. The defendant was entitled to take into account its new policy, and, indeed, was entitled to give it enhanced weight to promote consistency in decision making: see British Oxygen and Board Of Trade [1971] AC 610 and R v Secretary ofState for the Home Department ex parte Venables [1997] 2 WLR 67 at 90B. The defendant was entitled to do this provided that the policy did not automatically determine the outcome and the defendant gave individual consideration on proper grounds to the individual cases.

The claimants' cases depend on them showing that the defendant did not do this. As indicated in the passage from the judgment in ex parte Coughlan, set out earlier in this judgment, in considering changes of policy in circumstances such as the present the court's task is limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of the power.

A number of factors support the claimants' submissions that the defendant was applying its policy with inflexibility. It appears that standard form reasons were given for their classifications and for those of Vary and Tarrant. Vary and Tarrant were reclassified and returned to closed conditions, notwithstanding the proximity of the five year cut-off period, and then reclassified again two and three months later, shortly after the end of the expiry of the period, when they were returned to open conditions.

It appears from the statement in Ms Prior's letter that:

“It is possible that the individual review may lead to a return of some of these prisoners to open conditions.” (emphasis added)

that it was anticipated that the review would result in a change of grade from D to C for the majority of the prisoners involved. That, of course, might simply be giving an enhanced weight to the new policy.

The only individual circumstances that the documentation and the evidence established were taken into account are those listed in Ms Prior's letter of 2nd February and Mr Moore's letter of 11th March and in his statement. Those were primarily the prisoner's sentence, previous convictions and categorisation history. Mr Moore does not state that he considered conduct at all, nor is it in his list of factors that were considered. Ms Prior's letter mentions attendance on offence related programmes, adjudication history and progress through the Incentives and Earned Privileges scheme as factors that will also be taken into account, but she does not refer to conduct in general. It is, moreover, not clear from either Mr Moore's letter or statement or the RC1 forms that the latter was taken into account.

The importance of conduct to the classification of prisoners is shown by Rule 7 of the Prison Rules 1999. It is also seen in the RO1 form in which it is stated that recategorisation to a higher category of prison will normally be non-routine and in response to a significant change in risk or behaviour. It is also shown by the requirement that full details be given of facts relating to such.

The importance of conduct is also shown in paragraphs 2.1.1 and 2.5 of PSO 0900 (set out in paragraphs 31 and 35 of this judgment) which refer to changes in the prisoner's circumstances. Paragraph 2.3.4, in the context of the need to record facts indicating whether the likelihood of the prisoner escaping has been reduced in any way, gives as example of such facts that a prisoner has worked well in a position of trust without supervision, or that he has successfully completed any period of temporary release.

In the case of Mr Riordan there is no indication that his conduct from the time he was recategorised and made his own way unescorted to HMP Springhill, or his circumstances in being successfully assessed for a town visit, undertaking that visit successfully and being authorised for a further one were considered either by the officers who made the decision to reclassify him as a category D prisoner on 5th February, or by Mr Moore when he considered Mr Riordan's appeal. Mr Moore's letter states that he accepts the background facts set in the claimant's solicitor's letter, dated 16th February, and Miss Gallafent submitted that these matters were before Mr Moore when he made his decision. But neither Mr Moore's letter nor his statement state that those accepted facts were taken into account by him in the decision making process.

In the case of Mr Caetano there is similarly no indication that his conduct between 4th November 2003 and the time he was transferred to HMP Bullingdon was considered. In his case he was not transferred to an open prison immediately upon reclassification. He had to wait some six weeks. There was in his case less for the defendant to take into account after the reclassification, but the defendant has not shown that it took into account what conduct there was. I do not consider that the fact that Mr Caetano had spent less time in open conditions and had not had a successful town visit are reasons for distinguishing between him and Mr Riordan. Judicial review is about process and the defendant has not shown that it took into account either claimants' conduct in general and, in particular, since they were classified as category D prisoners in the reviews of their categorisation after the introduction of the new policy. That conclusion suffices for the claimants to succeed in their application.

I have also considered whether the failure explicitly to consider the effect on prisoners who had been properly categorised as category D under the former policy of being recategorised as category C is also a reviewable error. It is another aspect of individual circumstances which were not on the evidence taken into account. While it could be assumed that in general prisoners reclassified in these circumstances would feel very aggrieved and disappointed, in the case of a given individual there may have been some further effect, perhaps because of a medical or psychological condition, which should have informed the decision. While it is open to the defendant to apply its new policy to such persons and to give it enhanced weight, in view of the impact on this group of prisoners of a decision made for reasons unconnected to their conduct, I consider that in principle it was incumbent on the defendant explicitly to take into account consequences to individuals beyond the sense of grievance and disappointment, because those consequences might affect the decision concerning reclassification. It does not appear from Ms Prior's letter or Mr Moore's letter or statement that any account was taken of this.

Miss Gallafent argued that since all those reviewed were in fact facing reclassification from category D to category C the defendant was clearly aware of this. But, again, there is no indication in the evidence that the effect of the move back from category D status on individual prisoners was taken into account. This issue was, however, only briefly addressed at hearing and my decision to allow the application is not based on this ground.

For the reasons given, I set aside the decision to regrade the claimants as category C and direct the defendant to reconsider their grading with an open mind and on all the material available at the date of the fresh decision.

MR BLAKE: My Lord, I am most grateful for the careful consideration you have given to this matter and I escaped the idea of being a heretic in the course of my argument.

MR JUSTICE BEATSON: No, it is Sedley LJ who has escaped.

MR BLAKE: Yes, I noticed that. I am grateful to your Lordship. The only matter is that they are legally assisted and I would ask for a legal assessment.

MR JUSTICE BEATSON: Yes, you are entitled to that.

MISS GALLAFENT: My Lord, just two points if I may. Obviously I have had an opportunity to take instructions from the client in relation to the matter and my instructions are to apply for permission to appeal. I accept, of course, that your Lordship has decided it in relation to the particular circumstances of these two particular claimants, but I do submit that the case as a whole raises important wider issues which it would be appropriate for Court of Appeal to consider. I take that submission no further at this time.

The second point is in relation to the effect of your Lordship's decision. Of course the claimants are currently classified as C and held in closed conditions. Just to clarify, there is no suggestion that there should be any change in those circumstances pending the review, the reclassification decision to be taken with an open mind. I seek only to clarify that point.

MR JUSTICE BEATSON: Well, I will deal with the second point first. It appears from what happened on 16th January this year that it is possible within the current rules to hold a category D prison within a category C prison. These claimants were so held pending the review. So I don't -- subject to anything that Mr Blake would say -- I don't say that they should be forthwith transferred back.

On the other hand, I don't want to understate it and I don't want to overstate it, so at the risk of understating it -- and you can put it up a couple of scales on the Richter Scale -- it would be unfortunate if having given that indication the defendant did not proceed to the reclassification with due speed.

MISS GALLAFENT: No, my Lord. I certainly accept that. But the position remains that in the circumstances that whilst it is technically possible of course to hold a category D prisoner in category C --

MR JUSTICE BEATSON: You did so for three weeks.

MISS GALLAFENT: Yes, my Lord, but the effect of your Lordship's judgment and the relief granted is not such as to require the defendant either to recategorise immediately to D, or to reallocate to an open prison.

MR JUSTICE BEATSON: Let me read out what I read out a minute ago. I set aside the decision to regrade the claimants as category C. (1). So that is set aside. (2) I direct the defendant to reconsider their grading now with an open mind and on the material available at the date of the fresh decision.

The reason I did that was that if I set aside the original classification theoretically that would have gone and Mr Blake would have said they would still be D and they have been wrongly detained for all this time, and all of that. I think -- I hoped that my order was clear. I should give Mr Blake an opportunity to make any observations he wants before I give you any further clarification.

MR BLAKE: My Lord, I am in total agreement with what you said. As I understand it the position is, as you have rightly identified, is that once a person in a position of getting reclassified he can be held in category C conditions until the decision is made. That is self-evident, and is the normal practice as I understand it. Therefore I don't quite follow the difficulty that my friend seeks to say will arise.

MR JUSTICE BEATSON: In which case there is no disagreement. I have set aside the decision. There is clearly an issue about these claimants' classification. They are presently held in a category C prison. Moves, especially moves that are likely to be reversed, do not seem to me to be beneficial to prisoners. Accordingly, so long as those instructing you, your lay clients, get on with it, they can remain where they are pending the reviews, but I apprehend that if it takes considerable time that Mr Blake will be back. Is that sufficiently clear? I see nodding behind you.

MISS GALLAFENT: I can feel the nodding, my Lord. I am very grateful for that clarification. I may be the only person requiring it, but it is of assistance.

MR JUSTICE BEATSON: Let me hear Mr Blake on appeal.

MR BLAKE: My Lord, as I understand the basis of your judgment you have upheld the legal arguments in respect of legitimate expectation and that therefore there is no legal point to make. You have made a factual finding on a Wednesbury principle, that certain factors that ought to have been taken into account were not done so the papers and the evidence, and therefore I don't quite understand the legal point my learned friend urges, and I would ask you to say that this is not a suitable case.

MR JUSTICE BEATSON: Save for the fact that -- did you argue that the defendants were entitled not to take conduct into account?

MISS GALLAFENT: My Lord, no. I argued that the defendants had taken --

MR JUSTICE BEATSON: Enough account of the --

MISS GALLAFENT: Indeed, and I did so on the basis of the 11th March letter which made it clear that Mr Moore had taken into account --

MR JUSTICE BEATSON: So the reality -- the difference between us is whether, as you submit, the fact that Mr Moore accepted the background facts meant that he had taken into account home visits, and all the other matters, including certificates.

MISS GALLAFENT: My Lord, I say that is the proper reading of the letter.

MR JUSTICE BEATSON: But that -- this is not a question of principle. Do you wish to take instructions?

MISS GALLAFENT: I am sorry, my Lord, may I have a moment? (Pause). My Lord, that indeed is the difference between us and that is the basis of my application for permission to appeal. I can put it no further than that.

MR JUSTICE BEATSON: Although the case raised interesting questions on the arguments on which Mr Blake was unsuccessful, the basis on which the claimant won was whether the documentary material before the court, including the statements, showed that conduct had been taken into account. That is a question of interpretation rather than a general matter of principle. And on that matter I believe you ought to ask the Court of Appeal whether they want to hear this.

MISS GALLAFENT: My Lord.

(Pause)

MR JUSTICE BEATSON: In the interests of transparency I shall read to you what I have put on the form.

“The claimant succeeded on the question whether on the documentary evidence and statements before the court the defendant had shown it had taken into account the claimant's conduct in conducting the recategorisation reviews. I do not consider there is a realistic prospect of success on this point, nor does it raise general or wider issues.”

MISS GALLAFENT: Thank you, my Lord.

MR JUSTICE BEATSON: I am sorry I had to read the judgment out to you, but the timetable did not allow me to produce a hand down judgment.

MISS GALLAFENT: My Lord, we are most grateful to you for the time you have taken.