Hunnisett, R (on the application of) v The Governor of HMP Frankland

MR JUSTICE LANGSTAFF: This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Andrew Baker J.

The claimant is a serving prisoner who is currently in HMP Frankland. Whilst there, she changed her gender from male as she had been, to female as she is. She is a transgender prisoner. She is serving a life sentence for murder. This was not the first murder of which she had been accused, having earlier been convicted of murder but acquitted on appeal before offending again in short time. He was convicted on this occasion before Saunders J and a jury, and ordered to serve a term of life imprisonment with a minimum term of 18 years. He had killed, and in the process tortured, an elderly vicar, accusing him of having been a paedophile. When sentencing him, the judge described him as "an extremely dangerous man who may well kill again".

Since about October 2015, she has identified as female. As such, the gender transgender policy of the prison service applies to her and the conditions in which she is held. As a transgender prisoner, she complains that she is likely to suffer the threats and distaste of other prisoners with whom she has been incarcerated.

She has given a moving description to me this morning of the threats to her safety inside prison which make it difficult and risky for her to have unrestricted freedom amongst prisoners as if she were an ordinary prisoner on the ordinary wing.

Normally, such prisoners are accommodated in the Vulnerable Person's Wing where they may be more carefully protected. The difficulty in her case is that on the Vulnerable Person Wing there are, as is well recognised, a large number of people who have been accused of offences which might be described as paedophilia.

She had described her mission at one stage as being "to rid the world of paedophiles". The prison noticed that in January 2015 she had called another prisoner "a nonce" and made threats to a third party about assaulting that prisoner. To place her in the VP Wing seemed to the prison to risk the safety of those who were already in that wing for their protection. Accordingly, it took the decision not to transfer the claimant to the VP Wing. The claimant has accepted in her argument before me today that it is unlikely because of her particular history that she could be relocated to the VP Wing.

When the claim was first begun, filed on 9 September 2016, it set out the details of the decision to be judicially reviewed as follows:

She complains that not having been permitted to go to the VP location she cannot access church, work and education in the same way as she might if she were on an unrestricted regime.

She claimed that her treatment in this way was in breach of Article 3 and Article 14, Article 14 relating to discrimination and by reference to the Equality Act 2010. She has the protected characteristic of sexual orientation.

In section 7 of her N461 she sought a mandatory order to relocate her on the VP Wing allowing her a full regime like any other prisoner. That, as I have said, she now recognises is impractical or likely to prove such, but there was an alternative. The alternative was for HMP Frankland to meet all the terms by compromise laid out in Comp.2/1632/16.

She complains when the Baker J refused her permission, he did so upon the basis that the claimant was to be located in prison.

She began her submissions to me this morning by telling me this was wrong: she was really complaining about the whole of her treatment; in effect, that the prison was obliging her to run the risk, if she were to have access in the usual way to such as education, church and work, as would be appropriate to a full regime, of being subject to the threats from other prisoners who were unfamiliar with transgender people. The risk was that those threats might be carried out.

She has described how desperate her position has been and the attempts that she has made upon her own life in consequence. She accepts that this is a far wider claim than the claim which was originally expressed in the application.

The difficulty that she has in pursuing her claim further is that it has to be approached upon the basis of the complaint that she put out for this court to consider.

The Administrative Court considers in effect decisions made by public authorities. It asks whether those decisions have been made on a proper basis. The decision under attack in the originating application was the decision not to transfer her to VP location, the consequence being that she had to remain either on the full wing or in some form of segregation.

For a while she was on the MPU Unit and refused to leave. She is now in the prison hospital where she has some freedom but is still limited in what she can do. She works 3 hours a day, cleaning the hospital environment, but does not have access to church or education as she otherwise might if unrestricted.

These complaints are not clearly flagged up in the original application. The original application, as I read it in common with Baker J, and I should say in common with the way in which the respondent has so far responded to her complaint, has been about where she is located in prison. Indeed, it is difficult to disentangle the decision as to location from the consequences of which she complains.

This court is not, as part of its duties, required to manage prisons. Its function is to ensure that such decisions as are taken are lawful. As to the decision to refuse transfer to the VP unit, in my view, it was lawful. It could not be said to be irrational. It is not in breach of the rights of the claimant under the European Convention of Human Rights whether one looks at Article 3 or Article 8. So far as Article 8 is concerned, which would be engaged by the restrictions potentially placed upon the claimant in consequence of that refusal, it, of course, is a qualified right. The rights of those prisoners who are in the VP wing have rights too, in particular their right to life and similarly their Article 3 rights might be infringed, and it was the prison's view that they would be infringed if she were to be transferred there. This view was not disproportionate to the interference with the Claimant’s rights.

I therefore see no arguable case. It is not for me to decide the case but merely to ask whether there is a proper argument. There is no arguable case that she could complain about the decision which triggered the litigation.

The wider complaints she now makes against the prison seem to me to lack the focus of being dependent upon a particular decision, unless it is the decision as to where she should be located, which, as I say, is one for prison management and not for the the courts to make initially although the courts may review it.

I cannot see in the papers that she has been discriminated against on the basis that she is transgender. It is a fact that she is transgender; it is a fact that as a result she may suffer a greater risk from other people than she should, or otherwise would, if not transgender; and it is an obligation of the prison to protect her so far as the prison can from such risks. But I do not see that there is any relief which it is within the powers of the court to give in respect of such a wide-ranging claim.

If, and in so far as, the claimant considers that she has suffered any injury for which she may claim compensation or seeks an order requiring the prison service to behave in a different way toward her on a proper legal basis she would have the right to bring a Part 7 claim in the courts: but this does not fit, as it seems to me, with the claim which is brought in this forum, which is dependent upon a decision susceptible to public law review.

It is for those reasons principally that I have concluded, having listened to all that she has said, that there is no realistic prospect of success in this claim and this application as it stands has to be and is dismissed for those reasons.

That is what I am saying in respect of your case. If you wish a transcript of those remarks, you may have one at public expense.

THE CLAIMANT: Yes, please, thank you.

MR JUSTICE LANGSTAFF: Not at all.