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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (Admin) (04 September 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2220.html Cite as: [2009] EWHC 2220 (Admin), [2010] 2 All ER 151, (2010) 11 BMLR 70, [2009] HRLR 35 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand. London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN (on the application of AB) |
Claimant |
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- and - |
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(1) THE SECRETARY OF STATE FOR JUSTICE (2) THE GOVERNOR OF HMP MANCHESTER |
Defendants |
____________________
Mr. Oliver Sanders (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 24 July and 3 August 2009
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Crown Copyright ©
The Deputy Judge (David Elvin QC):
Introduction
"That felt like an important stage. No one can take my female status away from me. Till the day I die I will be a woman. For me it is simply a reflection of how it should have been from the start. The start was a mistake and now it is being put right.
All that remains is surgery."
"The prison service seems to have confused attitudes about all this. They will not consider me as a female until I have my penis removed ... notwithstanding my gender recognition certificate. Yet they resist moving me to the female estate which would enable the surgery to be arranged.
I feel an increasing sense of urgency to get this final stage completed. I have been trying since I was 10 to get this sorted out and I am now 27. After 17 years and when I am so nearly there, it is frustrating not to be able to progress to the final stage. I sometimes worry that it might never happen. I feel in limbo, I read in the papers about young people in the community who are getting the help they need and that I asked for. Recently there has been a young person from the north east who has had surgery at the age of 19. I am very happy for her but I wonder why that could not have been me. It is not as though I am someone who has asked for this later in life having tried to live a different life - getting married and having kids and so on. I have tried to get help from a very early age. I do get frustrated but I try to deal with this on my own. I do cry and let my emotions out but I do this in the privacy of my own cell. It is not something I can discuss with anyone in the prison."
i) in the circumstances of a biologically female offender possessing a similar risk profile to the Claimant, no woman would be held in a male prison; and
ii) the risk profile presented by the Claimant is one which can be accommodated within a female prison and that there are female prisoners who may present similar risks and have a comparable history of violent offending.
"I see for my part no gross indication of personality disorder at this point and I suspect that she would be considered to be far too little disturbed to be a candidate for any kind of dangerous or severe personality disorder unit."
The decision under challenge
"1.2 A decision on the appropriateness of gender re-assignment surgery for a transsexual person is a clinical decision, which should be taken by clinicians, who specialise in the field of gender dysphoria, applying the same principle as would be applied in relation to people at liberty. The fact of a person's imprisonment and the situation in which that places them, especially if he or she is a long-term, high-security prisoner, may have a bearing on the exercise of that clinical judgment in that it may be more difficult for that person to effectively live "in role" as part of his or her preparation for surgery.
1.2.1 Where a clinical need for surgery has been established and the appropriate NHS commissioning authority has agreed to fund the operations, it would be inappropriate for the NOMS/Prison Service to refuse to allow surgery to proceed for non-medical reasons. However, in appropriate cases, especially where there are specific risk factors... it may be appropriate for the Governor to provide a report as to the practical effects in a prison context of any medical decision. This should be based on risk of harm and in appropriate cases, this may include providing a risk assessment - especially for category A & B prisoners and those whose index offence is of a sexual or violent nature."
"Decisions about the location of prisoners who live in a role other than that assigned to them at birth who have not yet undergone gender confirmation surgery, whether or not they have commenced hormone treatment, must be reached only in the light of all the circumstances of their particular case and following a full multi-disciplinary risk assessment."
"The Claimant presents a significant risk, and a very unusual one. However, it is accepted that her risk is not unique or wholly exceptional, and that there are other prisoners within the female estate who present very unusual risks. Nonetheless, in Dr Travers' view she suffers a severe psychopathology that is closely linked to her index offence."
"56. It is important to have in mind a number of factors when considering whether it would be appropriate to allow the Claimant to be placed in the general female estate (i.e. not in segregation): the specifics of her offending history (which of course include an attempted rape of a female, as well as manslaughter); the difficulty of sourcing any suitable interventions for her and the time it will take to put something in place and then to monitor her response in terms of reducing her level of risk; the lack of guarantees that her surgery will definitely proceed, as this is a clinical judgment which is totally outside the control of the Prison Service; concerns over how the female population would react to her generally, and also specifically if they became aware of her index offence. With all of the above in mind, there can therefore be no guarantee that the Claimant, either pre- or post-operatively, would ever be suitable for integration into the general female prison population.
57. There are serious detrimental effects of segregation on a prisoner over a long period of time and I note the Claimant's history of reacting badly to frustration. This increases the likelihood that she could become progressively harder to integrate into the general population, should she be moved to a segregation unit in the female estate.
58. I would also say that following an unsuccessful move to the female estate, it would be extremely difficult to move the Claimant back to the male estate at that stage.
59. Notwithstanding the issues about risk and the immediate difficulties of any transfer, there are also difficulties with keeping the Claimant on indefinite or long-term segregation. While she has self-segregated in the past, it is clinically undesirable for her to remain apart from her peers. Associating with them is a necessary part of the therapeutic process, but is clearly not possible while segregated.
60. There is the further difficulty with the very considerable cost involved. No definitive long term costing has not been done yet. However, the segregated regime of another male to female transsexual prisoner who previously transferred to segregated accommodation within the female estate is estimated to cost approximately £85,000 per year (in addition to the standard costs of imprisoning any individual), This includes the costs of keeping that prisoner ring-fenced with two dedicated officers, and a third trained for relief work, as well as separate psychology and mental health costs, and costs for separate exercise and education. This presents significant resource implications.
61. There are other concerns including concerns that other male to female gender dysphorics may wish to follow any precedent set by the Claimant and enter the female estate which would further constrain the limited number of available segregation places in the female estate."
"64. Subsequent to the Minister's endorsement of my decision, the Claimant's solicitors served a report dated 18th June 2009 from Professor Don Grubin (exhibited as MS18) on the Treasury Solicitor. I have carefully considered this report and it has not caused my opinion to change. I particularly note that the index offence of attempted rape did not involve the ability to sustain an erection, and appears to have been more inspired by feelings of frustration and jealousy than sexual desire. While the main issue that has been addressed in terms of risk is the Claimant's risk to herself, NOMS must also bear in mind the risk she poses to other prisoners. Finally, I note Professor Grubin's view that an operation could be provided in the male estate without change to her stability. This remains our preferred solution."
The Issues
i) Whether the decision to keep the Claimant in a male prison violates her Article 8 rights, considered in the light of s. 9 of the Gender Recognition Act, such that she cannot continue to be held there but should be transferred to a female prison;
ii) Whether that decision violates Article 14 taken with Article 8; and
iii) Whether the latest decision of the Secretary of State to keep the Claimant in a male prison is unlawful on conventional Wednesbury grounds.
The Gender Recognition Act 2004
"(1) Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation."
ECHR considerations
"Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
i) Was in direct conflict with her right to personal freedom and autonomy under Article 8. The Claimant was being treated unlawfully for no other reason than that she had been born a man;
ii) Amounted to unjustified discrimination within Article 14 since no biological woman with a similar risk profile to the Claimant would be subject to detention in a male prison and to the restrictions on personal autonomy to which the Claimant is subjected;
iii) To the extent that a "floodgates" argument was being advanced by the Secretary of State, the effect of any decision concerning the particular circumstances of the Claimant would not be relevant to those who were born women; and
iv) S. 9 of the Gender Recognition Act underlined the legal requirement that the Claimant had to be recognised as a woman since the grant of her certificate.
i) The Claimant sought to establish a positive obligation under Article 8 and, given the stricter approach to recognition of such duties, which was not met here, Article 8 was not engaged;
ii) Even if Article 8 were engaged, the decision was lawful and proportionate, having been based on expert advice and on the need, arising from a risk assessment, to segregate the Claimant for an unknown period of time, and the considerable costs likely to be incurred in doing so. The Claimant was some way from establishing that she would obtain surgery and in any event Strasbourg did not provide any guarantee of gender reassignment surgery. The decision was in part based on the concerns arising from the serious offences committed by the Claimant and on expert evidence of a serious personality disorder; and
iii) Article 14 was not breached since the Secretary of State approached transgender prisoners on an individual basis and the Claimant was not in the same position as a biological woman whether generally or as a result of s. 9 of the Gender Recognition Act, and there had not been discriminatory treatment. The Secretary of State's approach was in any event justified for the reasons set out in Mr Spurr's statement.
"70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disfranchisement based purely on what might offend public opinion."
Article 8
i) Whether it is engaged at all;
ii) If it is engaged, whether the obligations claimed are positive and/or negative in nature; and
iii) Whether any interference with Article 8 rights is justified.
"19. These and other cases show that the content of the phrase "private and family life" is very broad indeed. Looking only at the words of the Article, one might have supposed that the essence of the right was the protection of close personal relationships. While that remains a core instance, and perhaps the paradigm case of the right, the jurisprudence has accepted many other facets; so many that any attempt to encapsulate the right's scope in a single idea can only be undertaken at a level of considerable abstraction. But it is an endeavour worth pursuing, since we need if possible to be armed at least with a sense of direction when it comes to disputed cases at the margin.
20. The phrase "physical and psychological integrity" of a person {Von Hannover paragraph 50, Marper paragraph 66) is with respect helpful. So is the person's "physical and social identity" {Marper paragraph 66 and other references there given). These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual. I claim no originality for this description. In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 Sir Anthony Clarke MR, giving the judgment of the court, referred at paragraph 31 to Lord Hoffmann's emphasis, at paragraph 51 of Campbell v MGN Ltd [2004] 2 AC 457, upon the fact that "the law now focuses upon the protection of human autonomy and dignity - 'the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.'"
21 The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the Article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual's personal autonomy makes him - should make him - master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the "zone of interaction" {Von Hannover paragraph 50) between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the State shows an objective justification for doing so.
22 This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by Article 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if Article 8 is to be engaged) attain "a certain level of seriousness". Secondly, the touchstone for Article 8(1)'s engagement is whether the claimant enjoys on the facts a "reasonable expectation of privacy" (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of Article 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the State pursuant to Article 8(2). I shall say a little in turn about these three antidotes to the overblown use of Article 8."
"... the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings. In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved."
"91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. ... No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost."
"72. The Court recalls that the notion of "respect" as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention."
"28 The value of this approach is I think to be understood in light of the important fact that the paradigm case of Article 8's application is where the putative violation is by the State itself. It seems to me entirely in harmony with the fair balance which falls to be struck throughout the Convention provisions between the rights of the individual and the interest of the community (see for example Sporrong v Sweden (1982) 5 EHRR 35 , paragraph 69) that where State action touches the individual's personal autonomy, it should take little to require the State to justify itself, but equally - if (and I repeat, this is critical) the action complained is taken in good faith to further a legitimate aim - a proper justification may be readily at hand. This is no more than the rule of law in action. Thus the State organ in question, here the police, is subjected by Article 8 to proper standards of conduct; but through the margin of discretion recognised in the jurisprudence, the law will allow it proper practical scope to fulfil its public duty."
"This increases the likelihood that she could become progressively harder to integrate into the general population, should she be moved to a segregation unit in the female estate"
the proposition that similar consequences could well ensue by reason of continued detention in a male prison is not considered at all.
"9.4 It would be psychologically desirable for surgery to be undertaken as soon as is reasonably possible"
"Were it the case that [the Claimant] realised that she was going to remain 'in limbo' without any clear time-table for a move to the women's estate then the author anticipates that she would become increasingly frustrated. This would indicate a shift in her risk profile and the risk of self-harm and harm to others would be heightened. One would expect deceitful and manipulative behavioural repertoires to become more evident."
Professor Don Grubin agreed with this assessment at para. 40 of his Report.
"A core cognitive focus for [the Claimant] is her obsessive preoccupation with wanting to be a woman and how this dominates her subjective consciousness to the detriment of other cognitions. There is an association between [the Claimant's] conscious awareness of mounting angry and a corollary need to control what she has consistently reported as having been an intolerable subjective sense of hopelessness at her perception of obstacles being placed in her way to become a woman.
[The Claimant] needs to control the threatening external world by imposing her own order and when this is not possible she resorts to stronger measures which incorporate narcissistic, compulsive, aggressive, violent and sadistic elements. ...
... As [the Claimant's] desperation to control her environment mounts, she experiences a heightening degree of narcissism or self-concern. She is increasingly liable to experience aggressive and destructive impulses.
Such features can be seen in [the Claimant's] two serious offences and there is no doubt in the author's mind that her gender dysphoria is intertwined in such complex emotional upheaval."
"36..... She has demonstrated in the past a limited tolerance of frustration, and if she were to perceive her progress as being stalled in a segregation unit then it is possible she might once again revert to dysfunctional self-harming behaviour. It is important to note, however, that in this situation the potential reversion to self harm would be a response to her frustration of having the primary aim in life - to achieve a sex change operation - being blocked, rather than as a response to segregation itself, and therefore the risk of this is similar should progress stall while she is in her current location."
"Because of how [the Claimant] struggles with her frustration, were she to perceive undue delay in going forward for gender reassignment surgery, and given her tendency not to disclose her frustration to her carers, the ability to more safely manage risk to self/others would be optimised were she in a segregation unit as this offers additional safeguards in terms of monitoring."
"The author does not favour [the Claimant's] transfer to a female establishment, however, given the necessity of such a move before gender reassignment surgery can be considered and in light of [the Claimant's] desire for such surgery, it would be inappropriate for the author to oppose such a transfer."
"Were [the Claimant] transferred to a segregation unit she would need time to settle into her new environment as would her new carers require time to get to know her and to make refinements in her compact accordingly.
The author imagines that clarity about preparation for gender reassignment surgery and liaison with the appropriate services would take some time. During that period any compact would need to include regular reviews of [the Claimant's] mental state and allowing for the many risk domains already detailed..."
"39. I agree with Dr Travers that if [the Claimant] were transferred to a segregation unit the amount of time she would need to remain there cannot be predicted, and will depend on a range of factors including the nature of the wing, and the staff on it, to which she was ultimately headed. My recommendation, however, is that a timescale of weeks rather than months should be aimed for. An expectation of settled behaviour would of course need to be associated with movement away from segregation."
"I would say that I suspect that caution will probably lead to her being placed on a segregation unit in the first instance and that in no very great time (perhaps a couple of months) it will become clear that she is so widely accepted as female in that unit that location in the main prison will follow. I think that such acceptance will pretty generally apply in the main prison, also, although there will probably always be a small number of prisoners who will choose to make an issue of the matter because they are the sort of women who enjoy conflict. If this patient is able to cope with protracted close proximity women of that sort I would judge her able to cope with the less prolonged, more avoidable, travails of the civilian world."
"8. As we have said, he had had a previous conviction for manslaughter. The facts were that in 2000 the appellant was in a homosexual partnership with another man. His partner had become increasingly hostile as the appellant underwent treatment for his sex change and became increasingly feminised. On the night of the offence the deceased was physically violent towards the appellant, who lost control, held a pillow over his partner's face until he stopped struggling and then strangled him with a pair of tights. The appellant was at the time diagnosed as suffering from severe gender dysphoria, with prominent evidence of male to female transexualisation. The reports commissioned at the time spoke of the nature and extent of his condition and the effect that the provocation offered by his partner would have upon him. Consequently, his plea to manslaughter on the grounds of provocation was accepted. He was sentenced, as we have said, to five years' imprisonment.
9. The judge when sentencing for this offence had a further series of reports before him. They made clear that the appellant's condition had given rise to much personal distress and frustration, which erupted from time to time into violence. Plainly, he presented a danger to others; an automatic life sentence was inevitable and is not challenged.
10. The judge correctly identified the risk which the appellant posed, but he observed that until he received full and proper treatment for his condition, he would continue to pose a serious possibly fatal risk to any member of the public with whom he associated. He identified that this was the second serious offence with which he was convicted..."
"(13) The Claimant could not be placed in a segregation unit without either a special regime or additional staff input, because one hour exercise and one shower per day would not allow for any kind of managed transition including the requisite supervision, treatment, assessment etc. Two dedicated staff would be needed to accompany and supervise the Claimant on each additional activity deemed suitable, e.g. visits to the library, education, work, supervised contact with other prisoners.
(14) The general aim would be to provide supervised periods of "purposeful activity" broadly comparable to those enjoyed by unsegregated prisoners, i.e. 25-30 hours per week (see above). As full time prison officers are effective for 31.2 hours per week (taking into account annual leave and training), the Claimant's dedicated supervision would therefore occupy two officers more or less full time."
"The author is confident that a biological woman presenting the same high level of risk such as [the Claimant] presents would never be placed in the male prison estate following conviction nor would she ever be considered for transfer to the male estate during her sentence."
Article 14
Was the decision Wednesbury unreasonable?
i) The failure of the Secretary of State to take into account the likely consequences of denying the Claimant the opportunity to qualify for surgery, leading to the probable need for segregation (and the associated resources implications);
ii) The failure to consider the views of the last Risk Management Meeting that continued detention for the Claimant in a male prison was not in her best interests and she could not stay there indefinitely;
iii) It has been assumed in considering the resource implications (apart from the failure already mentioned) that segregation in a female prison would necessarily be long-term;
iv) The last paragraph of Mr Spurr's statement shows that he failed to understand the expert advice since he says -
"Finally, I note Professor Grubin's view that an operation could be provided in the male estate without change to her stability. This remains our preferred solution"
However, taking the evidence as a whole, this is not a tenable view in the light of the current clinical approach to gender reassignment surgery as Dr Barrett explains and Dr Travers has now accepted in his Addendum Report. This shows a misunderstanding by Mr Spurr which, even though mentioned by Professor Grubin (but in the context of a hypothetical question at para.. 40 of his report), also flaws the Secretary of State's approach here;
v) The most recent explanation of the costs (4.8.09) which justifies the costs on the basis that they are needed to set up a special regime for the Claimant to allow for purposeful activity including supervised contact with other prisoners and to manage the transition to the female prison estate are not consistent with the reasons given by Mr Spurr. They also appear not to have been considered by Mr Spurr in expressing concerns with regard to segregation and integration; and
vi) The Secretary of State has therefore also failed to follow the draft PSO guidance at para. 9.1.2 that decisions about the location of pre-operative transgender prisoners "must be reached only in the light of all the circumstances of their particular case."
Conclusion