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England and Wales High Court (Administrative Court) Decisions


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: (2010) 11 BMLR 70, [2010] 2 All ER 151, [2009] HRLR 35, [2009] EWHC 2220 (Admin)

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Neutral Citation Number: [2009] EWHC 2220 (Admin)
Case No: CO/9490/2008

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

Royal Courts of Justice
Strand. London, WC2A 2LL
4 September 2009

B e f o r e :

DAVID ELVIN QC
(Sitting as a Deputy High Court Judge)

____________________

Between:
THE QUEEN
(on the application of AB)

Claimant

- and -



(1) THE SECRETARY OF STATE FOR JUSTICE
(2) THE GOVERNOR OF HMP MANCHESTER

Defendants

____________________

Ms. Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Mr. Oliver Sanders (instructed by the Treasury Solicitor) for the Defendants


Hearing dates: 24 July and 3 August 2009

____________________

HTML VERSION OF JUDGMENT

____________________

Crown Copyright ©

    The Deputy Judge (David Elvin QC):

    Introduction

  1. The Claimant, AB, who is a 27-year old pre-operative transgender woman, seeks judicial review against the Secretary of State for Justice and the Governor of HMP Manchester to challenge the decision of the Secretary of State to keep her within the male prison estate and not to transfer her to a female prison. Although the Claimant was bom as a man she has been undergoing the process of gender reassignment and on 25.7.06 was granted a certificate under the Gender Recognition Act 2004 which requires her recognition as a woman "for all purposes".
  2. The Claimant is a Category B, post-tariff life sentence prisoner who has been detained at HMP Manchester throughout her sentence. She is serving an automatic "two strikes" life sentence for offences committed whilst a man, namely manslaughter by reason of provocation of her male partner (convicted on 26.01.01, sentenced to five years imprisonment) and attempted rape of a female stranger five days after release from the manslaughter sentence (convicted on 04.07.03, tariff expired 18/02/07). She was remanded on 19.11.02 and sentenced on 18.8.03.
  3. The Claimant was born male but has been diagnosed as suffering from gender dysphoria. Indeed, she has said in evidence that she was aware of the issue of her gender from an early age. There have been several stages to the Claimant's progress to being recognised as a female, all of which have happened during her current sentence. The first stage was in about March 2003 when she began taking feminising hormones and she has taken them continuously since then. After 12 months the Claimant was referred to the Gender Identity Clinic at Charing Cross Hospital, London and has been under their care since. The next stage was laser treatment to remove unwanted facial and genital hair and, as a result, the Claimant no longer shaves. Following this the Claimant obtained a gender recognition certificate which, as she says in her evidence, gave her legal recognition as a woman:
  4. "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."

  5. In physical terms the Claimant presents convincingly as a woman and, even within a male prison, she dresses and passes herself off as a woman subject to a number of restrictions. It is not considered safe to hold the Claimant amongst the ordinary male offender population and, because of the sexual nature of her index offence, for her own protection she is held in the Vulnerable Prisoners Unit ("VPU") according to a written compact between herself and the Prison Service ("the Compact") which is in evidence.
  6. She lives as a woman, is treated as a female and is provided with guaranteed single cell accommodation. She uses the showers in private and is able to launder her female clothing herself. She has access to cosmetics. The Compact contains an agreement on what clothes and make up she can wear and in what circumstances. Details of a specially adapted manner of searching are also outlined in the Compact. Under the Compact, items of clothing which appear most feminine (blouses, skirts etc) may not be worn out of cell. Since no "in cell" association is permitted, this essentially restricts the wearing of the most feminine clothing to times when the Claimant is alone. The Compact also allows, in somewhat vague terms, that "a reasonable and acceptable amount of makeup may be worn at all times but this must be within limits". However, the result of this is that restrictions are placed upon the Claimant's movements, upon what she can wear and upon her ability to participate in the ordinary life of the prison. While the outcome of these proceedings does not turn on this issue, the restrictions placed on the Claimant exceed those which would apply if she were resident in the female prison estate.
  7. Her gender dysphoria and appearance have also had a seriously adverse affect upon her ability to engage in offending behaviour work, a pre-requisite to her progress through the prison estate towards release. She was referred for review by the Parole Board on 7.6.07, when it was decided that her risk factors (including anger and frustration management, thinking patterns and attitudes relating to violence and weapons, sex offending, problem solving and impulse control skills) and the risk to life and limb of releasing her were too high, and she was refused release. Although at an earlier stage there was disagreement over this issue, the Secretary of State now accepts that the Claimant cannot undertake any standard risk reduction or offending behaviour work within either the male or female estate but instead needs a bespoke course which could be commissioned and delivered at either a male or female establishment. It is unlikely that the Claimant will be able to meet the requirements for release on parole until such work is undertaken and reduces to an acceptable level the risk which she presents to the public.
  8. Although the Gender Recognition Panel was satisfied that the Claimant had lived in her acquired gender for the requisite two year period prior to her application for a gender recognition certificate, while she was detained in the male prison estate, the Gender Identity Clinic treating her will not approve her gender reassignment surgery until she has spent a period living "in role" as a woman within a female prison. The experts instructed by both the Prison Service and the Claimant agree that this is an appropriate requirement. It follows that so long as the Claimant remains within the male prison estate she is unable to progress towards the surgery which is her objective. While transfer to the female prison estate does not guarantee that the Claimant will be able to proceed to surgery while in prison, unless she is transferred the prospect of surgery is ruled out for so long as she remains in prison.
  9. As the Claimant herself explains her position -
  10. "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."

  11. It is common ground that if the Claimant were transferred to a female prison, she would have to spend a period of time in segregation before a move to normal, unsegregated accommodation. It is a matter of uncertainty how long that period will have to be and it is said by the Prison Service for the Secretary of State that a long-term segregation regime, which is assumed by the Prison Service to be necessary, would by unduly expensive.
  12. It is also common ground that, while the Secretary of State has a discretion with regard to the segregation of male and female prisoners under rule 12(1) of the Prison Rules, in practice segregation of the sexes within the prison estate does occur. It is also undisputed that there are only two instances when (transgender considerations apart) women would be accommodated within a male prison: in cases where the requirement for security is so high that it cannot be met within the female prison estate or for temporary purposes e.g. transfer or holding during a court appearance. Neither of these cases is relevant here.
  13. It is now accepted by the Secretary of State that
  14. 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.

  15. It is not disputed that the Claimant cannot be considered for gender reassignment surgery while she remains in a male prison and must spend at least two years living "in role" either in a female prison or in the community as a pre-requisite to being considered for surgery. The prospect of the Claimant's release into the community is a remote one at present and can be discounted for the purposes of this challenge.
  16. A number of expert reports have been produced both for the Claimant and for the Prison Service which range over a number of issues concerned with the Claimant's risk profile, her psychological profile and several other related issues. Specific questions in the context of these proceedings have been sent by the Treasury Solicitor to some of the experts who had addressed them in further reports or letters. Only one is specifically experienced in transgender issues. The only evidence from an expert in gender dysphoria, Dr James Barrett of the Gender Identity Clinic, Charing Cross Hospital, who has also known the Claimant for many years, explained why living in role in female accommodation was required and added that he did not consider that the Claimant was not an appropriate candidate for surgery:
  17. "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."

  18. While there is undoubtedly a great deal of debate over many aspects of the Claimant and the risks which she presents, it is axiomatic that the Administrative Court is not an appropriate body to reach its own conclusions as to the correctness or otherwise of competing expert views although there may be matters in that evidence which are uncontroversial, sufficiently clear or even plainly wrong which the Court can use to test the decision under challenge. Into the latter category, for example, falls the view expressed by some (e.g. Dr Travers in his first report) that the Claimant should undergo the reassignment surgery but in the context of a male prison whereas it is now common ground (see Dr Travers' Addendum Report) that this can only occur after living in role as a woman for at least two years in a female prison.
  19. There are certain significant matters appearing in the experts reports which do affect the approach to be taken by the Secretary of State and I will return to them in due course.
  20. The decision under challenge

  21. The refusal to transfer the Claimant to a prison within the female estate has been through a number of stages and subject to different reasoning. Earlier contentions that the Claimant's risk profile was such that it would not be safe or appropriate to accommodate her in a female prison are now no longer relied upon. There has been a flurry of experts' reports commissioned by both sides and, although a degree of consensus has emerged, there are still areas of disagreement.
  22. The Secretary of State, as a result, reconsidered the decision not to transfer and reaffirmed it at a very late stage, having regard to the expert evidence. It is not formally recorded in a letter but in the witness statement of Michael Spurr signed on 13.7.09, less than a fortnight before the hearing. Although the decision initially targeted by the judicial review was that taken at a case conference review on 13.7.09 at HMP Manchester, it is obviously sensible to consider the most up-to-date reasoning advanced by the Secretary of State and both parties have focused their written and oral arguments on it. In response to queries raised with regard to some of the matters raised concerning costs, further information was supplied by the Defendants orally at the hearing and subsequent to the hearing by e-mail.
  23. Further, the Ministry of Justice has recently produced a draft Prison Service Order "Draft Guidelines on the Management, Treatment and Care of Prisoners who have or have had Gender Dysphoria" (Order No. 3300) ("the draft PSO"). This document is only in draft and underwent a period of internal consultation within government, Prison Governors and the trade unions. It was signed off internally in September 2008 by the Operational Policy Group, of which Mr Spurr is Chairman and submitted for ministerial approval. However, there were delays in final approval which has now led the MOJ to delay final approval until the result of the current proceedings is known. The draft PSO has not been made publicly available and only came to the attention of the Claimant and her advisers when Mr Spurr's witness statement (which exhibits it) was served.
  24. Nonetheless, the draft PSO clarifies the position that the Prison Service does not regard custody as necessarily preventing gender reassignment surgery. It states at paras. 1.2 and 1.2.1:
  25. "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."

  26. Para. 9.1.2. states:
  27. "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."

  28. In his witness statement Mr Spurr, who is the Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice, explains that the reasons now set out take account of the approach in the draft PSO and supersede any earlier decision not to transfer. Mr Spurr explains that:
  29. "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."

  30. The key reasoning of the decision is now found in paragraphs 56 to 61 of Mr Spurr's witness statement:
  31. "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."

  32. I was subsequently told that segregated prisoners are normally dealt with by officers assigned from the main body of prison officers and that a minimum of two officers is required who might not otherwise have to be deployed at the time. The officers would not require special training but they would be required because it was assumed that the Claimant would (unlike most who are segregated for no more than 2-3 weeks) be there for a longer period of time and would require a bespoke regime which would allow her to participate in purposeful activities and to leave her cell for more than the hour a day permitted for short term segregated prisoners.
  33. Mr Spurr explains that the reasons he sets out were endorsed by the Minister. He ends as follows:
  34. "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."

  35. There are a number of difficulties with the statements made with regard to the reasons, particularly those relating to the cost of segregation and to the question of retransfer to a male prison, which were raised on the first day of the hearing by Ms Kaufmann for the Claimant and myself in seeking to understand the decision. Since the case was adjourned part-heard for a little more than a week, this allowed Mr Sanders, who represented the Defendants, to come back on them if so advised. While additional information was provided informally on the question of the estimated costs, supplemented by e-mail following the end of the hearing, no explanation was given for the claim in para. 58 that it would be "extremely difficult" to retransfer the Claimant to a male prison.
  36. While I consider that I should attach significance to Mr Spurr's assessment, it is difficult absent any further explanation to do more than regard it as an acceptance that there could be a retransfer albeit with unexplained difficulties. Whether the difficulties which are referred to would lie with the mechanics of retransfer or with the attitude of the Claimant to such a situation is not made clear.
  37. On the question of the resource implications, while I am left with a residual concern that they have not been carefully thought through, in the light of the late information I consider it appropriate to accept the evidence as providing at least a broadly accurate indication of cost. As Ms Kaufmann observed in reply, had the Claimant been a biological female in a female prison, the costs of segregation would have to be paid in any event and that, even in the male prison estate, she is kept separately in the VPU on the terms of her own Compact.
  38. The Issues

  39. The case raises the following issues:
  40. 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

  41. As a starting point, it is necessary to consider the effect of the Gender Recognition Act 2004. S. 9 provides:
  42. "(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."

  43. This provision, and the mechanism in the Act itself, was introduced in order to secure compliance with the ECHR following the decision in Goodwin v. UK (2002) 35 EHRR 447. See Bellinger v. Bellinger [2003] 2 AC 467 per Lord Nicholls, para. 57. Like Goodwin itself, the Gender Recognition Act 2004 marks an important milestone in the recognition of transgender rights.
  44. The requirement that the person is "for all purposes" of the acquired gender gives rise to difficulties in a case such as this where a person with acquired gender still retains physiological aspects of the former gender - in this case, male genitalia. The Secretary of State contends that s. 9 does not require the Prison Service to disregard all the consequences of the Claimant's physiology, nor the implications which they might have for the proper running or discipline of the Prison Estate. This is undoubtedly a difficult line to draw since if it were taken too far, it could undermine the purpose of the provisions to prove a comprehensive recognition of acquired gender. On any view, they would not justify regarding the Claimant as anything other than a woman except to the extent strictly necessitated by the specific relevance of the Claimant's preoperative physical state to the functioning of the prison.
  45. Nonetheless, the precise scope of the provision is unclear and, whilst it plainly requires the application of legislation to the subject in accordance with the acquired gender, does it justify treating the Claimant who is in law a woman as, for certain purposes, a woman who possesses male characteristics? For present purposes, this is not resisted by the Claimant and I am prepared to hold that s. 9 does not require the law to presume she has physical characteristics other than she actually possesses and that it is proper for the Secretary of State and the Prison Service to have regard to them but to the limited extent that they have a bearing on their responsibilities for prisons and other prisoners. However, to the extent that the issue impinges on matters of external appearance, such as clothes and cosmetics, the issues fall to be considered as applying to a woman held in the male prison estate and it seems clear that far greater restrictions are imposed on the Claimant under her Compact than would be the case if she were held in the female estate. I doubt that similar restrictions would apply in the rare case of a biological woman held in a male prison.
  46. ECHR considerations

  47. The relevant provisions of the ECHR are as follows:
  48. "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."

  49. Ms Kaufmann submitted that the decision to retain the Claimant in the male prison estate, subject to unduly restrictive conditions in the Compact on her ability to dress as a woman -
  50. 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.

  51. Ms Kaufmann submits this is a case where I should not merely hold the Secretary of State's decision unlawful but declare that the only lawful decision which could be taken would be to order the transfer of the Claimant to a prison in the female prison estate.
  52. In response, Mr Sanders said:
  53. 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.

  54. It is axiomatic that a prisoner does not lose all rights by virtue of imprisonment, whether at common law or under the Convention: Raymond v. Honey [1983] 1 AC 1 per Lord Wilberforce at p. 10; Hirst v. UK (2006) 42 EHRR 41; Dickson v. UK (2008) 46 EHRR 41. In Hirst, the ECtHR held at para. 70:
  55. "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

  56. The issues arising under Article 8 are:
  57. 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.

  58. Article 8 recognises the right to respect for private and family life, home and correspondence. The concept of "private life" has been widely drawn: Pretty v. UK (2002) 35 EHRR 1, para. 66 and R (Wood) v. Commissioner of Police of the Metropolis [2009] EWCA Civ 414. In Wood Laws LJ, having reviewed a number of authorities, held (in the context of a privacy claim regarding the retention of photographs):
  59. "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."

  60. This analysis was agreed by Dyson LJ and Lord Collins, although they disagreed with Laws LJ as to the application of Article 8(2) to the facts: see, e.g., per Dyson LJ at para. 64.
  61. The rights of transsexuals have been considered in a number of cases both in the UK and in Strasbourg and the recognition and protection which the Convention confers on their personal autonomy and human dignity is now unassailable, following earlier uncertainty. See Goodwin, above, Bellinger v. Bellinger [2003] 2 AC 467 per Lord Nicholls, paras. 20-32 (which preceded the enactment of the Gender Recognition Act) and L v. Lithuania (2008) 46 EHRR 22.
  62. In Goodwin, the ECtHR characterised the significance of Article 8 as follows at para. 90:
  63. "... 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."

  64. The Court noted that although there may be practical difficulties with the above principle, they were not insuperable:
  65. "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."

  66. It is correct, as Mr Sanders submitted, that Article 8 does not justify the recognition of positive rights in all circumstances. As the ECtHR held in Goodwin at para. 72:
  67. "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."

  68. He also submitted that the nature of the infringement of the rights relied upon by the Claimant here were insufficiently precise or significant to engage Article 8, namely restrictions on her "right to self determination in the expression of her womanhood" and "ability to participate in the ordinary life of the prison", a desire "to be held in the part of the prison estate designated for women and structured to meet their needs" and not in "an environment which is constructed and tailored for men, not women" and not being able to "mix with and form friendships with other women as she would choose to do" or "dress and make herself up as she would choose". He pointed out that the Claimant had succeeded whilst in a male prison to obtain her gender recognition certificate and was recognised as a woman and treated as such. If the restrictions in the Compact were inappropriate, these could be altered. A fair balance had been struck between public and private interests in the Claimant's case. In conclusion, he submitted that Article 8 was not engaged.
  69. It was also submitted that, for similar reasons, there had been no failure to respect the Claimant's private life as a woman and Mr Sanders again pointed to the considerable progress she had made in prison towards realising her wishes and the Compact which permits her to wear female clothes and makeup in certain circumstances.
  70. I have already observed that the restrictions placed on the Claimant's ability to wear female clothes in the Compact are more restrictive of the Claimant's rights as a woman than would be the case in a female prison. Whilst this is not a key issue since the Compact might be modified to some extent to allow the Claimant greater freedom, it is indicative that there are perceived to be practical limitations on keeping her in the male prison estate which are unlikely to operate in a female prison.
  71. Mr Sanders also repeated several times the submission that the ECHR does not guarantee the right to gender reassignment surgery. While that is correct, it is not the point in issue since the Claimant's complaint is not that she is entitled to such surgery but that the Secretary of State's decision to keep her within the male prison estate will prevent her from even attempting to meet the conditions which would qualify her for surgery. The draft PSO recognises that this is primarily a clinical decision. It is this which the Claimant submits represents an unjustified and disproportionate restriction on her personal autonomy and freedom to choose which is not a necessary concomitant of her detention in prison. It is clear that the Secretary of State does not regard a custodial sentence as an inevitable bar to gender reassignment surgery and it is also equally clear that the Claimant will not know whether she qualifies for such surgery until she has been assessed. However, in male prison she cannot even begin that process and is therefore prevented from even being considered for surgery. The reasons for this are not disputed, and are explained in Dr James Barrett's two reports of 6.5.09 and 20.5.09.
  72. Dealing first with the question of whether the case seeks to establish a positive right under Article 8, in my judgment although there is a positive aspect to the claim in the sense that the objective of the relief sought is to effect a transfer to a female prison, this would be simply the consequence of the negative. I consider that the rights engaged have significant negative elements, not least that the decision to retain the Claimant the male prison estate effectively bars her ability to quality for surgery which interferes with her personal autonomy in a manner which goes beyond that which imprisonment is intended to do.
  73. Considering the case as a whole, it is not surprising that the claim has both negative and positive aspects, as have many Article 8 cases where the positive aspect is simply a concomitant of the negative. Here, in my judgment, the negative issues predominate since the essence of the claim is the interference with the Claimant's ability to progress to full gender reassignment by continued detention in a male prison. The question of transfer to the female estate is no more than a consequence of the fact that to hold the Claimant in a male prison places a significant restriction on her autonomy and her wishes (not themselves inconsistent with Prison Service policy) to seek to qualify for surgery.
  74. I am assisted in considering this issue by the explanation given by Laws LJ in Wood of the relative roles which Article 8(1) and (2) play:
  75. "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."

  76. This underlines the analysis that a finding of an initial engagement of Article 8 and application of Article 8(1) where the State interferes with a person's autonomy does not require a high level of support and that, providing there is some basis for that finding, the focus then turns to the reasons advanced for the State under Article 8(2) for the specific interference.
  77. I reject Mr Sanders' submission that the rights claimed are insufficiently precise or significant. The recognition by the draft PSO of the opportunity for prisoners to qualify for reassignment surgery, which is a mainly clinical decision, is inconsistent with Mr Sanders' submissions. Moreover, I do not consider that this is a case where there is only a slender basis for the application of Article 8(1) since it seems to me that the interference with the Claimant's autonomy is a significant and a personal one. It goes to the heart of her identity, it appears to be closely related to her offending behaviour, and has been acknowledged by the Secretary of State to date in recognising that the Claimant should be entitled to proceed with the process of gender reassignment and has facilitated it at least as far as the process under the Gender Recognition Act.
  78. I therefore find that Article 8 is engaged, not merely minimally, and that the decision to retain the Claimant in a male prison interferes with her Article 8 rights. It follows that it is for the Secretary of State to satisfy the requirements of Article 8(2) and to justify as proportionate the interference with the Claimant's rights under Article 8.
  79. The Secretary of State, having to balance the often competing interests of criminal justice, protection of the public, the prison estate, resources, and the well-being and discipline of all prisoners, is allowed significant latitude in terms of exercise of his discretionary judgment. Moreover, this is not an appropriate forum to resolve differences in the experts' reports produced for the current case and I accept Mr Sanders' submissions that the Secretary of State is entitled to take a view based on considering them all and to adopt an approach which is a precautionary one given the need to balance the various competing interests in running the prison estate.
  80. While the considerations relied on by the Secretary of State may serve a "legitimate aim" (in terms of economic and prevention of disorder objectives) to the extent that it seeks to balance a number of considerations concerning risk and resources, I do not consider that the decision was "in accordance with the law". Since Mr Spurr's evidence demonstrates a failure to consider a number of relevant issues, for reasons I detail below, this leads me to conclude that the decision is one which is not "in accordance with the law". See per Lord Collins in Wood at para. 98.
  81. For reasons I will explain further, in my judgment the Secretary of State has failed to provide a sufficient justification pursuant to Article 8(2) and I find that the decision to keep the Claimant in a male prison is not proportionate and violates her Article 8 rights.
  82. Whilst, as I have noted, considerations of risk and the resources needed to manage risk (here arising from the need to segregate) fall within a relatively generous margin of appreciation, where the decision places a significant restriction on a prisoner's personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom.
  83. I refer to this as being primarily a resource consideration since the need for segregation, as opposed to its costs, is not of itself a barrier to the move to a female prison given the risks identified. It is accepted by the Secretary of State, as I have already noted, that a biologically female prisoner with the same risk profile as the Claimant would not be kept in a male prison and the risk which she presents can be managed appropriately within a female prison. Although Mr Spurr refers to the question of risk leading to the need to segregate, as well as other concerns arising from segregation, the Claimant is already within the VPU in her present prison and there is nothing specific to the risks which require detention in a male prison. So far as the risk element is concerned, particularly the issue of the effect of segregation, from the most recent information provided it now appears that the Prison Service proposes to address them in the special regime that would be required in a female prison and which it is said would be too costly.
  84. In this context, it is uncertain how long the Claimant will require to be segregated and there is an issue which the Court cannot resolve as to the likelihood whether that will be a short or long period of time. However, it appears from the experts' reports that the Claimant's offending behaviour is closely related to her gender dysphoria and that severe frustration would be caused by keeping the Claimant in a male prison, and the consequential denial of the opportunity to qualify for surgery. It is surprising that although Mr Spurr states "I note the Claimant's history of reacting badly to frustration" at no point is this related to the frustration likely to occur if the Claimant's hopes are defeated. While Mr Spurr noted
  85. "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.

  86. This omission is significant, given the number of clear indicators of the implications of the Claimant's gender dysphoria and her strong desire for reassignment surgery. Dr R. F. Travers, a Consultant Forensic Psychiatrist, appointed to advise the Prison Service, stated in his first report that:
  87. "9.4 It would be psychologically desirable for surgery to be undertaken as soon as is reasonably possible"

  88. Dr Travers wrote in his Addendum Report (under Question 7):
  89. "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.

  90. As he pointed out earlier in the report (p. 5):
  91. "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."

  92. It seems plain from these views that preventing a transfer is likely to disturb the current stable regime and the frustration of the Claimant's ability to progress towards realisation in full of her gender appears likely lead to an increase in her risk profile, requiring segregation, even within her current environment. There is no evidence that the consequences of the frustration of the Claimant's progress, and its possible effects on risk and the costs of keeping her within a male prison, was taken into account by the Secretary of State.
  93. A related point is made by Professor Don Grubin:
  94. "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."

  95. Moreover, in his Addendum Report Dr Travers modified his position significantly from the risks he had identified in his first report in part, it seems, from his consideration of Dr Barrett's advice. In answering question 3 posed by the Treasury Solicitor in her letter of 18.5.09 (risks from transfer to a segregation unit within a female establishment) Dr Travers opined:
  96. "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."

  97. In response to Question 5, accepting Dr Barrett's view of the need for living in role as a woman prior to being assessed for surgery, Dr Travers again referred to the Claimant's strong desire for surgery:
  98. "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."

  99. Although Dr Travers was unable to give a clear indication of the time required before the Claimant could be transferred to un-segregated accommodation it does appear that the need for segregation was to allow time for settling in (and relates to his concerns in his first report relating to disruption of the Claimant's settled regime and routine in male prison) which may indicate something other than a longer term requirement for segregation:
  100. "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..."

  101. Professor Grubin writes:
  102. "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."

  103. Dr Barrett stated in his second report:
  104. "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."

  105. The link between the Claimant's gender dysphoria and her offending behaviour was also noted by the Court of Appeal in 2005 on the Claimant's appeal against sentence following conviction for attempted rape (prior to the Claimant's gender recognition certificate). At paras. 8 to 11 Openshaw J., giving the judgment of the Court, stated:
  106. "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..."

  107. The risks of denying the Claimant even the hope of progressing further towards surgery have been recognised in the Claimant's case conference reviews conducted by the Prison Service: the risk it presents "both to herself and others if she perceives that her treatment is being delayed or withdrawn" was noted on 10.7.08 under "trigger points". A similar concern was noted in the MAPP Meeting Minutes of 18.12.08 at p. 5 under "Risk to herself.
  108. As Ms Kaufmann submitted, and I accept, the Secretary of State's decision only considered the cost of segregation on the basis that it was likely to be required only if the Claimant were transferred into a female prison and only if it were required for a significant period of time. Not only did it not consider the possibility that the period might not be particularly long, but wholly failed to consider, let alone balance, the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for reassignment surgery were to increase the difficulties of the Claimant living in a male prison and themselves lead to segregation. This was clear not only from the circumstances of the Claimant's offending, as the Court of Appeal noted, but from Dr Travers' reports and was not disputed by the other experts.
  109. Further, in assessing the expert views I have referred to, the Secretary of State appears to have adopted an extreme position since Mr Sanders told me that the assumption behind the decision was that segregation is likely to be long-term. There is inconsistency between that assumption and the later information on resources provided to me by e-mail on 4.8.09 which makes it clear that the resources which have been estimated include the provision of a special regime to allow for "managed transition":
  110. "(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."

  111. Moreover, this also tends to undermine that part of Mr Spurr's justification concerning the drawbacks of segregation on the Claimant's own mental health since the resources which have been estimated are to facilitate a special regime including "purposeful activity" equivalent to that engaged in by unsegregated prisoners, including supervised contact with other prisoners.
  112. A further point is that it does not appear to have been recognised by the Secretary of State in the decision-making that, on Dr Travers's analysis, the Claimant presented a risk in both male and female prisons. This was, however, noted in the Minutes of the Inter-Departmental Risk Management Meeting 8.4.09 that the Claimant "cannot stay" in her current male prison indefinitely and that it was not in her "best interest to remain in the male estate in the long term". These considerations also point to the somewhat one-sided assessment of the circumstances in Mr Spurr's witness statement.
  113. Accepting the Prison Service's estimates of the resource implications, though not without concern at the lateness of the information explaining a very recent decision, I find the justification advanced significantly flawed for the reasons I have mentioned. When issues so close to the identity of a prisoner as here, so intimately concerned with her personal autonomy, the deployment of resources as a justification for the infringement of such rights must be clear and weighty in order to be proportionate. Here they are neither, given the circumstances I have identified and there are significant inconsistencies between the concerns expressed by Mr Spurr and the basis upon which the costs have been estimated. The lack of proportionality is underscored by the legal requirement of s. 9 of the Gender Recognition Act and the fact that a biological female with the same risk profile as the Claimant would be dealt with appropriately in a female prison as Dr Travers noted in section 4 of his second report:
  114. "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."

  115. It follows that in my judgment the Secretary of State's decision to continue to detain the Claimant in a male in prison is in breach of Article 8.
  116. Article 14

  117. In the circumstances, since I have found a violation of Article 8, and the substance of the issues has been covered in that respect, it is unnecessary for me to consider the claim under Article 14 that there has been unlawful discrimination.
  118. I comment that this claim would have been more difficult to establish since the Claimant was treated as a woman in a male prison in the light of her particular physical circumstances. While it is true that the Claimant was not treated in a manner equivalent to a biological woman, it is difficult to characterise the treatment as discriminatory since the Claimant was treated as a woman but in a pre-operative condition and the Prison Service contends that it treats all transgender cases according to their own circumstances. Although the draft PSO for gender dysphoric prisoners is not in final form, this policy also states at para. 2.2 that the treatment of transgender prisoners should be "sensitive to the needs of each individual". See also the passage from 9.1.2 quoted earlier in this judgment.
  119. I doubt that in such circumstances, the Secretary of State is to be taken as having subjected the Claimant to discriminatory treatment. Although s. 9 of the Gender Recognition Act introduces difficulties, to which I have already referred, it is necessary to acknowledge that the actual physical characteristics of a post-certificate, but pre-operative, female may remain relevant for some purposes.
  120. Was the decision Wednesbury unreasonable?

  121. The Claimant contends that, apart from the ECHR considerations, the decision was in any event Wednesbury unreasonable given the failure by the Secretary of State to consider the implications in terms of frustration and increased risk of the denial to the Claimant of the opportunity to qualify for surgery in a female prison and the failure to consider the likelihood of segregation in due course even in a male prison and the cost of this. The Defendants oppose this and submit that the Secretary of State took into account matters which he was entitled to consider in reaching his decision.
  122. I have already referred to the wide discretion which the Secretary of State has in reaching decisions concerning the running of the prison estate. Convention considerations apart, the Court will not interfere lightly with the exercise of that discretion, although it is susceptible to challenge if the basis on which discretion has been exercised is plainly flawed e.g. the decision-maker has misunderstood an issue, or failed to consider relevant matters.
  123. Since I have concluded that the decision of the Secretary of State is in breach of Article 8 that would also provide grounds for quashing the decision having regard to s. 6(1) of the Human Rights Act 1998. However, there are features of the decision that would also justify the quashing of the decision on conventional Wednesbury grounds. Since I have dealt at length with the facts and the Article 8 issues, I will keep my reasons on this aspect of the case short but I consider that the following matters justify quashing:
  124. 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."

  125. Accordingly I also quash the decision to keep the Claimant in a male prison on conventional Wednesbury [1947] EWCA Civ 1 grounds.
  126. Conclusion

  127. For the reasons given in my judgment, I quash the decision of the Secretary of State to continue to detain the Claimant in a male prison and declare that her continued detention in a male prison is in breach of Article 8 of the ECHR.


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