Gender reassignment – Prisoners’ rights – Right to respect for private and family life
R (on the application of AB) v (1) Secretary of State for Justice (2) Governor of Manchester Prison: QBD (Admin) (David Elvin QC): 4 September 2009
The claimant (B), a pre-operative transgender prisoner, applied for judicial review of a decision of the defendant secretary of state refusing to transfer her from a male prison to a female prison.
B was a post-tariff life sentence prisoner who had been detained at a male prison following her conviction for manslaughter and attempted rape. She had been born male but had gender dysphoria. She had undergone the process of gender reassignment treatment and had been granted a certificate under the Gender Recognition Act 2004 which required her recognition as a woman. B wished to undergo gender reassignment surgery, but surgery could not be considered until she had spent time living as a woman in a female prison. However, if she were transferred to a female prison, she would have to spend an unknown period of time in segregation before moving to unsegregated accommodation. B’s request for a transfer to a female prison was refused on certain grounds, which included the risk she presented to herself and other prisoners and the significant resource implications of keeping her segregated in the female prison. The court had to determine whether (i) B’s rights under article 8 of the European Convention on Human Rights 1950 were engaged; (ii) the secretary of state’s decision violated B’s article 8 rights, considered in light of section 9 of the 2004 act; (iii) the decision was unlawful on Wednesbury unreasonableness grounds. B submitted that the secretary of state’s decision was unlawful and that the only lawful decision would be to order her transfer to a prison on the female prison estate. The secretary of state argued that article 8 was not engaged as B had sought to establish a positive obligation under article 8. The secretary of state further contended that even if article 8 was engaged the decision was lawful and proportionate, having been based on expert advice and on the need to segregate B for an unknown period of time, and the considerable costs likely to be incurred in doing so.
Held: (1) The decision to retain B in the male prison estate effectively barred her ability to qualify for surgery and progress to full gender reassignment, which interfered with her personal autonomy in a manner which went beyond that which imprisonment was intended to do. That interference was a significant and personal one. Accordingly, article 8 was engaged. A finding of an initial engagement of article 8 and the application of article 8(1), where the state interfered with a person’s autonomy, did not require a high level of support, Wood v Commissioner of Police of the Metropolis  EWCA Civ 414,  HRLR 25 applied.
(2) Preventing a transfer was likely to disturb the current stable regime, and the frustration of B’s ability to progress towards realisation in full of her gender appeared likely to lead to an increase in her risk profile, requiring segregation, even within her current environment. There was no evidence that the consequences of the frustration of B’s progress, and its possible effects on risk and the costs of keeping her within a male prison, had been taken into account by the secretary of state. The decision did not consider the possibility that the segregation period in the female prison might not be particularly long, and it failed to consider and 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 surgery were to increase the difficulties of B living in a male prison and themselves led to segregation. The decision also appeared to have failed to recognise that B presented a risk in both male and female prisons. The justification for the decision advanced by the secretary of state was, therefore, significantly flawed. When issues were so close to the identity of a prisoner, the deployment of resources as a justification for the infringement of article 8 rights had to be clear and weighty to be proportionate. In the instant case they were neither clear nor weighty. The lack of proportionality was underscored by the requirement of section 9 and the fact that a biological female with the same risk profile as B would be dealt with appropriately in a female prison. The secretary of state had failed to provide a sufficient justification under article 8(2) and the decision to keep B in a male prison was not proportionate and violated her article 8 rights.
(3) It was also appropriate to quash the decision on Wednesbury grounds due to the flaws in the decision.
Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour & Sinclair) for the claimant; Oliver Sanders (instructed by Treasury Solicitor) for the defendants.