CO/1273/2005 
Neutral Citation Number: [2005] EWHC 1663 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 6th July 2005
 
B E F O R E:

MR JUSTICE GOLDRING 

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THE QUEEN ON THE APPLICATION OF STEPHEN BRYANT
(CLAIMANT)

-v- 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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MR H SOUTHEY (for submissions only) and MS R CHAPMAN (for judgment only) (instructed by Prisoners Advice Service) appeared on behalf of the CLAIMANT
MS K GALLAFENT (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
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J U D G M E N T
Wednesday, 6th July 2005 
	MR JUSTICE GOLDRING:  
The issues 
1.	The claimant is a serving prisoner.  Although for reasons which will shortly become apparent this claim for judicial review raises a number of issues, they have, subject to my granting the claimant leave to amend in the terms of Mr Southey's skeleton argument served as recently as 10th June 2005, effectively been reduced to one.  Was the defendant's decision, on 18th March 2005, to recategorise the claimant as a category C prisoner from a category D prisoner, lawful without consideration of his family circumstances? 
The facts 
2.	The claimant is serving a 14-year sentence for conspiracy to commit aggravated burglary.  His Parole Eligibility Date ("PED") is 20th August 2008.  His automatic release date (or Non Parole Date, "NPD") is 19th December 2009.
3.	He has a 5-year-old daughter.  He also has a 13-year-old son.  On 19th March 2004 the Magistrates' Court ordered that he may have supervised contact with his daughter.  As to that order the claimant's family law solicitors say this:
"On the 19 March 2004, our client was granted a contact Order permitting contact between him and his daughter Natalie on alternate Saturdays at a suitable contact centre, such contact to commence upon Mr Bryant being transferred to open conditions.  It was also agreed that Mr Bryant would exercise telephone contact with his daughter between 5.00pm and 7.00pm on the non-visit Saturday upon his move to open conditions.  When this agreement was reached, it was understood that Mr Bryant was to obtain Category D status in May 2004."  
4.	He has agreed with his former wife that the son will not visit him in prison.
The claimant's first recategorisation 
5.	In May 2004 the claimant was serving his sentence in Rye prison.  He was a category C prisoner.  On 24th May he was recategorised as a category D prisoner.  That meant he could be allocated to an open prison.  The document recording that decision says this:
"Mr Bryant has been at HMP Rye Hill since 17/5/01.  Originally sentenced to 14 years in December 2001 for Conspiracy to Burglary.  He has a non-parole release date of 21/12/09.  He has no proven adjudications, no positive Voluntary Drug Tests, no positive Mandatory Drug Tests.  He has completed the Victim Awareness, Reasoning and Rehabilitation Social Life Skills, a CARATS referral and awaiting a place on an Anger Management course.  
The Board took note of the positive attitude towards the custodial environment and the work done towards addressing his offending behaviour and felt that Mr Bryant was suitable for recategorisation from C to D."
6.	On 7th July 2004 he was transferred from Rye to Leyhill.  Leyhill is an open prison.  
7.	In 2004 a new policy on categorisation was being formulated.  It was in response to the high profile absconding of a long-term prisoner from an open prison.  On 19th January 2004 a letter concerning this policy was sent to, among others, prison governors.  It said this:
"CATEGORY D PRISONERS
"1. The small number of determinant sentence Category D prisoners in the open estate with 5 years or more left to serve have been returned to closed conditions for a review of their categorisation and allocation.  They will remain Category D while the process takes place.  Any prisoners in the same category but currently in the closed estate will also be reviewed.
2. This is being done in response to concerns about absconds from the open estate and to afford us the opportunity to re-risk assess individuals in this particular category.
3. It is important that Governors of closed prisons holding Category D prisoners are aware of this exercise.  Special care must be taken with any Category D prisoners held in a closed prison and with 5 years or more left to serve, whether there as a result of this exercise or for any other reason.  They must not be allowed to work outside of the secure perimeter and must not be transferred to the open estate prior to a review of their categorisation."
8.	It is clear that the claimant was one of those prisoners who would be affected by the change in policy.  That was not realised when the claimant's category was changed from C to D.  Neither was it when he was sent to Leyhill.  It was only appreciated when he had been at Leyhill for some six days.  On 13th July 2004 he was transferred back from Leyhill to Rye.  
9.	That was not the only area of confusion.  As the correspondence shows there was considerable uncertainty for some time as to whether his category had changed on his return to Rye.  It has now become clear that it was not.  He remained a Category D prisoner albeit allocated to a category C prison.  That was so until 18th March 2005 when he was recategorised from D to C.  It is that decision which the claimant is now seeking to quash.
The consequences of the claimant being returned to Rye 
10.	The claimant's contact with his daughter depended upon him having day release to see her.  If he had remained at Leyhill or at another open prison it is likely he would have had such day release.  At Rye, and as a category C prisoner, such day release is less likely.  In addition, he will not see his son, although that is partly as a result of his and his former wife's decision.  
11.	Not surprisingly the claimant felt aggrieved.  On 21st July 2004 he made a complaint about the decision to transfer him back to a category C prison.  He referred to the magistrates' order for contact with his daughter.  He said the reason given for his transfer back was, "Because I did not fit the criteria." 
12.	Mr Mitson, the director at Rye Hill, responded:
"First of all, let me say how sorry I am that you have suffered the disappointment of being returned from Cat D conditions.  I can understand that it feels like a 'punishment' and, as you say, you have done nothing wrong.  However, I would ask you to understand that there are new rules about eligibility for Cat D conditions and HMP Leyhill is abiding by these new regulations.  There is nothing that we at Rye Hill can do about this.  Also, please understand that your Cat D is not an 'earnable privilege'.  It is a matter of security and certain new boundaries have been set."
13.	There then followed a series of letters between those representing the claimant and various arms of the Prison Service.  It is unnecessary to go through all the letters.  As I have said, and as both Mr Southey on behalf of the claimant and Ms Gallafent on behalf of the defendant agree, there was considerable confusion as to the claimant's category on both sides.  Clearly, the primary responsibility for this confusion was the defendant's.
14.	Throughout the correspondence those representing the claimant emphasised the effect on him of not being in an open prison as far as the children were concerned.  They urged the defendant to take that aspect into account.  
15.	On 17th September 2004 Mr Wheatley of the security policy unit in London wrote to those representing the claimant:
"I am unable to comment on the individual decisions made concerning the recategorisation of your client, and have not seen any of the documentation in this case.  I can provide you with the general policy on categorisation and changes to that policy which have been introduced this year.
In January 2004 a decision was taken to review the policy and procedures for the assessment of long-term prisoners to open conditions.  Against the background of a general rise in absconds from open prisons and the high profile case of Roderick McLean, there were concerns that when considering the recategorisation of long-term prisoners for Category D, existing guidance did not give sufficient weight to the seriousness of the index offence, sentence length and time left to serve in order to properly protect the public.
As an immediate action while new policy was developed, it was decided to return to closed conditions for a review of their categorisation and allocation, the small number of prisoners held in the open estate who had 5 years or more left to serve.  At the same time, Governors of closed establishments were advised not to move any category D prisoners into the open estate with more than 5 years left to serve."
Mr Wheatley referred also to the fact that the Secretary of State was in the process of issuing new guidance on identifying prisoners suitable for Category D status.
16.	On 28th September the Treasury Solicitor said, as is the defendant's current case, that family issues were relevant to decisions on allocation but not on categorisation.
17.	The claimant's solicitors asked for a review.  On 29th November 2004 Mr Wheatley wrote again.  He referred to the topic of family ties which had been raised by the claimant's representatives.  He said this:
"Family ties may be taken into account only in relation to a prisoner's allocation to a suitable prison of the same category (or in some limited circumstances a higher security category) as the prisoner himself.  Prisoners cannot be downgraded to a lower security category in order to facilitate access to family (although domestic problems may impact on the risk of a prisoner absconding from open prison and may influence a decision not to allocate to open prison while those circumstances prevail).  
I would also like to clarify that prison records indicate that Mr Bryant is still a category D prisoner.  He has not been recategorised to category C but moved back to closed conditions in line with the revised policy."
That final observation was correct.  
18.	On 27th January 2005 Mr Mitson reconsidered the case.  His conclusion is set out in a memo dated 27th January 2005.  It says this:
"I have considered your request for special consideration in respect of a move to a category D ahead of the time as set down in the new directive for the Prison Service.  
I am sorry to inform you that having examined your case and discussed it with others, I cannot find such exceptional conditions about your circumstances that warrant exception to the new guideline."
19.	It seems to me that Mr Mitson is there saying that in the light of the new directive the claimant cannot be allocated to a Category D prison.  The claimant submits that in respect of that decision his family circumstances should have been taken into account.  It was one of the decisions the claimant was originally seeking to quash.  He now relies upon this memo as part of the background.
20.	The claim for judicial review was then brought.  Its basis was the refusal of the Secretary of State to take account of the claimant's family circumstances when deciding to which prison to allocate him.  It accepted that family circumstances were not relevant to decisions of categorisation.  In the amendments now sought by Mr Southey he seeks to excise the concession that family circumstances were not relevant to categorisation.  (He seeks to exclude paragraphs 4.2.4 and 4.2.5 and the last three sentences of 4.3).  
21.	On 15th March 2005, as I have said, the claimant was recategorised.  The document concerning this, in Part 2, is headed, "Review of Categorisation to a Prison of a Higher Security Category."  It goes on to say:
"Recategorisation to a higher category of prison will normally be non-routine and in response to a significant change in risk or behaviour." 
In the section headed "State How Risk Has Increased" it states this:
"In light of new guidance from the Prison Service HQ HMP Leyhill have assessed the risk as increased due to length of time to serve to PED (2007) and there are no exceptional circumstances to warrant category D conditions." 
22.	As I have said, it is that decision that the claimant is now seeking to quash, for if lawfully reached, no question of allocation to a Category D prison can arise.  
23.	As Ms Gallafent points out, not without justification, the whole basis of the claim has now changed.  From saying that family circumstances were irrelevant to categorisation, the claimant is now saying the reverse.  He is basing his whole claim on that assertion.  Ms Gallafent objects to the proposed amendments and the change of case.  She submits that albeit just within the 3-month time limit it is too late; moreover, permission should not be granted in respect of a claim so plainly without merit.  
24.	As I indicated during argument it seems to me I should deal with the real issues this case raises.  Moreover, the claimant and his legal advisers can be forgiven some confusion.  The defendant, who was in the position to know best, was in a state of considerable confusion himself.  I grant leave to amend in the terms ought by Mr Southey.
25.	In short, then, the issue comes to this.  Was the defendant's decision of 15th March lawfully reached? 
26.	I turn then to the law and other material provisions.
Prison Service Order 09000 
27.	This deals with categorisation and allocation.  It makes clear that categorisation and allocation are different things.  As I understand it, that is now agreed.  Paragraph 3 of the introduction from the director of security says this (under the heading "Powers"): 
"3. 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.  
4.  Categorisation, recategorisation and allocation are all so vital to the sentence management of prisoners.  The correct categorisation and allocation, balancing security issues and the needs of the prisoner, helps prisoners to use their sentences constructively, to tackle their offending behaviour and to prepare for release." 
28.	The categories are defined in paragraph 1.1.1.  Category C is defined in these terms:
"Prisoners who cannot be trusted in open conditions, but who do not have the resources and the will to make a determined escape attempt." 
29.	Category D is defined in these terms:
"Prisoners who can be reasonably trusted in open conditions."
30.	Paragraph 1.2 deals with "The Principles of Categorisation." 1.1.2 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."
31.	There are other material references in 1.2.1.  It is not necessary to set them out.
32.	1.2.2 says this: 
"Although consideration of control factors is permitted, factors such as ability to mix with other prisoners, educational, training or medical needs, and the availability of vacancies at suitable establishments must not be taken into account at this stage.  They are for consideration during allocation.  The allocation process may immediately follow, but will be distinct from security categorisation." 
33.	1.2.3, as far as material, says this:
"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."
34.	1.6 deals with allocation procedures.  1.6.1 says:
"The allocation of prisoners to training establishments following conviction must form a process distinct from categorisation." 
In the concluding sentence it says this at 1.6.1:
"OCA officers must be alert to the danger of allowing his or her conclusions on allocation to influence those on categorisation."
PSI 45/2004 
35.	This was implemented as from 6th December 2004.  It is headed "Recategorisation to Cat D and Other Matters".  Its purpose is stated in these terms:
"To inform Governors and staff of revised guidance on prisoner categorisation including provision of specific guidance on recategorisation to category D."
36.	Under the headings "Performance Standards" and "Output" it says this:
"The specific guidance 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 must not normally be allocated to open prison any sooner than 2 years before their Parole Eligibility Date (PED) and more than 5 years before their Non Parole Date (NPD) and then only after a proportion of the sentence sufficient to address identified offending behaviour issues and to safeguard public confidence has been spent in a category C prison.  Where for exceptional reasons a prisoner with longer than 5 years to NPD is considered for allocation to open prison then the Governing Governor must make the final decision on the case." 
37.	Paragraph 3 states:
"Other changes include a provision for a non-routine categorisation review in any case where the previous decision appears to be unsound." 
38.	There is a section at page 4 headed "Process".  It says: 
"In making the categorisation assessment, governors must follow the process set out in the recategorisation forms, obtaining input from those prison staff who know the prisoner best and are best placed to provide insight into the extent of any change or who have specialist relevant information.  The... form where this is available will be particularly useful.  Other relevant information will include:
Security information... 
Reports from the Personal Officer and Prison Probation Officer which give an insight into the prisoner's attitude to his offending and sentence... 
Information about any domestic problems, which could impact, on the prisoner's stability and likelihood of trying to escape or abscond. 
Reports from the medical officer or psychologist...
The outcome of any offending behaviour programmes..." 
39.	Under the heading "Recategorisation to Category D" it says this:
"It is essential that prisoners must be assessed as trustworthy and sufficiently low risk before being allocated to open conditions and in making the decision, that governors keep in mind the particularly challenging management issues associated with the low physical security and supervision levels of the open estate." 
40.	It goes on to say:
"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 Prison Service 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.  Recent Home Office research has highlighted the groups of prisoners who present the highest likelihood of abscond."
41.	It goes on to say:
"The risks to be assessed may conflict.  Likelihood of abscond and risk 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 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." 
42.	A little later on: 
"Every case must be considered on its individual merits but it may help in decision-making to take as a guide that,
Long sentence prisoners should normally be transferred to open prison only having served a sufficient proportion of their sentence in a category D prison to enable them to settle into their sentence and to access any offending behaviour programmes identified as essential to the risk reduction process, and 
In the majority of cases it will be inappropriate to transfer a prisoner to open conditions more than 5 years before NPD, and
In the majority of cases it will be inappropriate to transfer a prisoner to open conditions more than 2 years before PED.  
In exceptional circumstances earlier downgrading may be necessary to support individual release plans but, to minimise the risk of damage to public confidence, any decisions to downgrade to Category D a prisoner with more than 5 years to serve to NPD must be made by the Governing Governor."
Prison Rules 1999 
43.	The Prison Rules 1999, a statutory instrument, refer to relationships between prisoner and family in these terms:
"Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both."
44.	In R (on the application of Vary & Ors) v Secretary of State for the Home Department [2004] EWHC 2251, Beatson J considered what I am told is effectively identical guidance now contained in P45/2004.  The facts were different to the present.  In that case long-term prisoners had been recategorised and allocated for some time to Category D prisons; in one case for some three months, in the other for some three weeks.  As Beatson J says, in paragraph 3 of his judgment, the core of the challenge was that the Prison Service's reasoning for the change of status failed to demonstrate any proper consideration was given to the prisoner's individual circumstances.  In a passage relied upon by Mr Southey, Beatson J said this (at paragraphs 93 and 94): 
"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." 
45.	In paragraph 94 Beatson J said this:
"Miss Gallafent [who on that occasion too represented the Secretary of State] 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." 
Ms Gallafent told me that this was not a ground in the claim in any event.
Mr Southey's submissions 
46.	He submits that the failure of the Secretary of State to take the family circumstances into account, particularly the claimant's possible contact with his daughter pursuant to the Magistrates' Court order, made the decision as to recategorisation flawed.  As I understand his argument it is this.  Categorisation under Prison Order 0900 was solely an issue of security as far as the prisoner in question was concerned.  Family circumstances under that order were not a relevant consideration.  P45/2004 has changed that.  It brought in the element of consideration of possible damage to public confidence.  There is an area of discretion.  It permits that, "In exceptional circumstances earlier downgrading may be necessary to support individual release plans..." 
47.	At the time the original decision to recategorise the claimant from C to D was taken, it was known how long he had to serve, a proper assessment of risk was made, nothing has changed but the advent of the new policy as represented by P45/2004.  The bringing in of the topic of public policy and the area of discretion means a broadening of the range of circumstances which should be taken into account on categorisation.  
48.	Mr Southey put it in this way.  It is not merely about risk.  Just as public confidence can be taken into account so can family circumstances.  He submits too that public confidence would be increased if it were known that account was being taken of building a relationship between father and child.  He further submits that the risk of the claimant escaping and/or reoffending will be reduced if he is permitted contact with his daughter.  As to the importance of family relationships and the statutory obligation to take them into account, he cites the Prison Rules 1999.
49.	Mr Southey also relies on Beatson J's observations to which I have referred.  He submits that the claimant had some disappointment and distress, to which his witness statement refers.  
50.	Finally, Mr Southey relies on Article 8.  Categorisation, he submits, on the present facts, brings in Article 8.1.  The decision-taker has to take family circumstances into account.  On the present facts Article 8.2 does not help the Secretary of State.
51.	He referred me to the decision of the Court of Appeal in R (on the application of P) v Secretary of State for the Home Department & Anr [2001] 1 WLR 2002, and in particular the observations by the Master of the Rolls to the effect that Article 8 applies to prisoners.  He concedes the facts there were wholly different. 
52.	Mr Southey encapsulated his argument in this way.  This policy is more than about risk.  That is how it should be interpreted.  Account should be taken of family circumstances.  It was not.
Ms Gallafent's submissions 
53.	Ms Gallafent's submissions can be summarised shortly.  Categorisation is about security.  Family circumstances are irrelevant to that.  They are relevant to allocation.  That was how the claimant originally put his case.  The exceptional circumstances referred to in P45/2004 relate to the risk of escape and/or the risk of reoffending.  Beatson J's observations are not inconsistent with that approach.  He was there considering the impact of retrospectively returning Category D prisoners who had for some time been living in an open environment.  That is not the case here.
54.	That the defendant is entitled to have and promote a new policy is clear.  There was no issue about that in Vary.  At the heart of the submissions of the claimant, says Ms Gallafent, is the proposition that because the public interest plays a part in P45/2000, that brings in further, such as family, considerations.  That does not follow, she submits, as a matter of logic.  No question of any breach of the claimant's rights under Article 8 can arise.
My view 
55.	I can well understand why the claimant might have a sense of grievance.  He was recategorised without reference to a policy which was then enforced.  He was allocated to an open prison in ignorance of that policy.  He was, after a few days, returned to a closed prison (a decision which Mr Southey said was understandable from the point of view of the prison governor in the circumstances).  There was then confusion for a long time as to his status.  Finally, he was recategorised.  None of this reflects well on the Prison Service.  However, that unhappy sequence of events cannot form the basis of my decision.
56.	I have come to the following conclusions.  
57.	First, Prison Order 0900 applies to categorisation and allocation.  They are two different things.  Categorisation is about security.  The definitions in 1.1.1 spell that out.  So too do the principles at 1.2.  What is said at 1.2 also emphasises that categorisation and allocation are two different things.  Matters can be taken into account on allocation which are irrelevant on categorisation (see 1.2.2).
58.	Second, bolted on to 0900, are the provisions of PS45/2004.  They apply to the recategorisation of a prisoner.  They provide "revised guidance on prisoner categorisation", as paragraph 1 of the purpose states.  Cases must still be decided "on their individual merits" but because of the danger of damage to public confidence in the prison system of the escape of prisoners within that group which contains the claimant, the element of public confidence has to play a part in any decision.  Given that that is so, it is only in exceptional circumstances, when necessary to support individual release plans, that the governor may downgrade earlier than provided for in the guidance.  
59.	PS45/2004 does not change the nature of the categorisation of prisoners.  Categorisation remains as spelled out in 0900.  It remains, in other words, about security and risk, or overwhelmingly so.  PS45/2004 requires account to be taken, in that context, of the confidence of the public in the ways suggested.  It is in that context that the words "exceptional circumstances" are used.  As to the consideration of "individual merits", as the section headed "Process" makes clear, that will require consideration of the sort of security related matters there referred to.  
60.	Depending on the individual facts, as Beatson J observed in paragraph 93 of Vary, it might require consideration of the physical and mental impact of the individual who has spent time in an open prison and is then returned to closed conditions.  That, on any view, is not this case.  
61.	Third, in the result, unless relevant to issues of risk and security, it does not seem to me that the broadening of the matters to be considered as a result of P45/2004 requires consideration of family circumstances.  Mr Southey did submit that family circumstances might impact on security issues; that a person who is seeing his children would be less likely to abscond or offend.  If, on the facts of a particular case that were so, that would be a relevant consideration.  However, it seems to me fanciful, on the present facts, to contend that seeing his daughter would make it any less likely the claimant would escape or reoffend.
62.	Fourth, if I am wrong as to the matters which are required to be considered as a result of P45/2004, it seems to me inconceivable that consideration of family circumstances on the facts of this case would have affected the outcome of recategorisation, given the weight legitimately to be placed on the new policy and the nature of the recategorisation process.  I am afraid that the sort of considerations advanced by the claimant are commonplace in a prison context.  Moreover, I do not accept Mr Southey's submission that public confidence would be increased by the public knowing that the claimant was seeing his daughter.
63.	Finally, I turn to Article 8.  Of course a prisoner, simply because of his status, does not lose his Article 8 rights.  For present purposes it is only necessary to say this.  Assuming the decision as to categorisation engages the claimant's Article 8 rights, on the facts of this case such interference with those rights as there were, was, in my view, unarguably in accordance with law and necessary.  The claimant is lawfully detained.  This was decision about security and risk.  Consideration by the decision-taker of the problems of contact could not possibly have made any difference.  
64.	For the reasons I have expressed this application for judicial review is refused.
65.	MS GALLAFENT:  My Lord, I do not have any applications to make.
66.	MR JUSTICE GOLDRING:  Ms Chapman? 
67.	MS CHAPMAN:  My Lord, the claimant is legally aided in this matter.  On that basis obviously we cannot resist any application --
68.	MR JUSTICE GOLDRING:  I do not think an application is being made.
69.	MS GALLAFENT:  No, I am not making an application.
70.	MS CHAPMAN:  I am sorry.
71.	MR JUSTICE GOLDRING:  But no doubt you would like a determination of your costs in accordance with the standard provisions? 
72.	MS CHAPMAN:  My Lord, yes.
73.	MR JUSTICE GOLDRING:  You may have that, of course.
74.	MS CHAPMAN:  My Lord, one further matter arises, and that is in respect of your Lordship's judgment, in terms of the meaning of "exceptional circumstances" within the policy PSI/45/2004.  It is on that basis that we seek permission to appeal for further clarification of what that expression actually -- how that could be interpreted.
75.	MR JUSTICE GOLDRING:  No.  (Pause) Thank you very much for coming, Ms Chapman.  Thank you, Ms Gallafent.
76.	MS GALLAFENT:  My Lord, I am particularly grateful for the speediness of your Lordship's judgment.
77.	MR JUSTICE GOLDRING:  Yes, not at all.  I had rather anticipated I would have the morning to prepare it.  In the event I did, but it became slightly uncertain.
78.	MS GALLAFENT:  We are very grateful.
79.	MR JUSTICE GOLDRING:  Thank you both very much.