Smith & Anor, R (on the application of) v HMP Lindholme

Prisoner categorisation and allocation are distinct, although overlapping, administrative processes. Guidance that prisoners should generally have no more than two years left before release when allocated to open conditions is not an inflexible rule governing categorisation. Each application for re-categorisation must be assessed on its individual merits, including relevant security risks and the consequences of possible allocation to open conditions. A category D assessment does not require immediate allocation to an open prison. Applying the two-year guidance mechanically, or treating the absence of exceptional circumstances as automatically decisive, is unlawful.

Two serving prisoners sought judicial review of decisions retaining them in category C rather than re-categorising them as category D. Both had more than two years before their conditional release dates. The decisions relied substantially on the two-year guidance in Prison Service Instruction 03/2009, together with varying security and sentence-management matters.

The claimants alleged that the prison authorities had confused categorisation, which concerns security risk, with allocation, which concerns placement. The central issue was whether the decisions had applied the relevant Prison Service Orders and Instructions lawfully.

1. The applications disclosed unlawful decision-making. The Prison Service Orders and Instructions were lawful guidance, not a rule book. They required individual assessment and flexibility. The two-year principle and the reference to exceptional circumstances could not be applied blindly or automatically.
2. Categorisation and allocation were distinct. Categorisation concerned security, escape risk, risk of harm and public confidence. Allocation concerned placement in a particular prison. The guidance in paragraph 14.6 of PSI 03/2009, including the exceptional-circumstances qualification, principally addressed allocation. A category D prisoner was eligible for open conditions but did not necessarily have to be placed there immediately.
3. The length of time before release was a legitimate consideration in categorisation, because it could bear on absconding risk and the consequences of absconding. Security information and wing reports were also matters for the prison authorities, subject to judicial review where appropriate. The court was not able on the evidence to conclude that those matters were irrational or unlawful.
4. Insofar as the two-year principle and absence of exceptional circumstances had been treated as decisive, the approach appeared inflexible and failed to consider individual merits. Nevertheless, six-monthly reviews were continuing, PSI 03/2009 had expired, and circumstances could have changed. The court therefore made no order, while expecting prompt reconsideration in accordance with the judgment and the then-current guidance.

These were first-instance judicial review proceedings. Permission was granted on paper by HH Judge Langan QC on 5 November 2009. The substantive hearing initially came before Langstaff J on 19 March 2010 and was later heard together before HH Judge Roger Kaye QC, sitting as a Judge of the High Court.