Guest post: The Wrong Prison! Sending trans women to male prisons is a breach of the ECHR

 

Guest post  by Super Cyan:

Screen Shot 2016-06-09 at 08.10.10

Image by csifer.

A few days ago, Pink News reported that another transgender woman had been sent to a men’s prison. December last year, Caroline Dinenage, the Parliamentary Under-Secretary of State for Justice, Minister for Women, Equalities and Family Justice announced there would be a review that will ‘develop recommendations for revised guidelines which cover the future shape of prison and probation services for transgender prisoners and offenders in the community.’ The review was supposed to be released early this year, but as of yet, no review has been released.

Pink News highlighted that it is common for incarcerated trans individuals to be sent to the prison that reflects their legal gender, requiring a successful application for a Gender Recognition Certificate (GRC) under s.1 of the Gender Recognition Act 2004 (GRA 2004). This, as Pink News state, due to the complexity of the process, trans women facing prison are less likely to have secured said certificate.

What does the European Convention on Human Rights have to say?

The European Convention on Human Rights (ECHR) is a collection of rights there to protect individuals from state action and inaction. However, Natasha Holcroft-Emmess, writing for @rights_info highlighted that the European Court of Human Rights (ECtHR) were slow to find violations of Article 8 (the right to respect private and family life) despite obvious discriminatory treatment by the UK. That was, up until the case of Christine Goodwin v UK – 28957/95 [2002] ECHR 588, a post-operative trans woman (para 12) who had been the victim of mistreatment in the work place (para 15-16). The applicant’s complaint was that she was not eligible for a State pension at the age of 60 (the age for women at the time), the failure of the UK to take heed of previous warnings of the ECtHR for legal reform on the issue of gender identity, the failure to provide protection against discrimination, the failure to obtain a promotion due to her employer discovering her status through her National Insurance number and a failure to recognise the rapid changes in social attitudes on the subject matter (paras 60-63).

The ECtHR highlighted that previous case law did not recognise such issues interfering with Article 8 (para 73) but decided to depart from this as ‘Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’ (para 74) continuing that:

‘It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement…In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.’ (para 74).

Crucially, the ECtHR recognised the serious interference domestic law had on the important aspect of personal identity. The ECtHR also pointed towards the stress and alienation arising from a discordance between the position in society assumed by post-operative trans individuals and the status imposed by law. The ECtHR believed this was no minor inconvenience as it places trans individuals in an anomalous position creating feelings of vulnerability, humiliation and anxiety (para 77). The ECtHR felt it ‘illogical’ that the UK allowed gender reassignment surgery but none the less did not recognise this in the legal sense (para 78).

The ECtHR reminded the UK that the very essence of the ECHR is the respect for human dignity and freedom, where the notion of personal autonomy being an important principle underlying the interpretation of its guarantees (para 90). Most importantly before finding a violation of Article 8 (para 93) the ECtHR highlighted that:

‘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.’ (para 90).

Physical and moral security will be an important factor to be considered a little later, but the ECtHR’s judgment led to the GRA 2004 in which s.9 requires that once a GRC has been issued, that persons gender ‘becomes for all purposes the acquired gender.’

Transgender women in men’s prisons:

The case of AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (Admin) concerned a 27 year old pre operative transgender woman who sought to challenge the Secretary of State for not transferring her to a female prison despite having a GRC (para 1). Despite living in her acquired gender for two years (as required by the GRA 2004) the Gender Identity Clinic treating her would not approve her gender reassignment surgery until she has spent a period living “in role” as a woman within a female prison (para 7). The High Court highlighted that the Secretary of State had the power to place women in a male prison but the circumstances for the present case were not met (para 10).

The questions before the High Court was whether such refusal violated Article 8 in light of s.9 of the GRA, whether Article 14 (securing Convention Rights without discrimination) in conjunction with Article 8 was violated and whether the decision by the Secretary of State was Wednesbury unreasonable (para 28). Section 9 of the GRA requires as stated that for ‘all purposes’ an individual must be treated as their acquired gender, yet Deputy Judge Elvin QC felt that that the restrictions imposed on the applicant (such as movement, clothing, and ability to participate in ordinary prison life (para 5)) wouldn’t likely apply in the rare case of a biological woman held in a male prison (para 31).

With regards to Article 8, after careful consideration of its case law in this area, with an emphasis on personal autonomy (para 38-53) it was concluded that Article 8 was engaged and therefore the Secretary of State had to justify that measures satisfied Article 8(2) (the limitations of the right to privacy etc). Deputy Judge Elvin QC had already concluded that the decision to keep the claimant in a male prison had violated Article 8 (para 57) but went on to explain why. Deputy Judge Elvin QC placed emphasis on risk and resources and that although the state has a generous margin of appreciation (discretion), when such decisions places significant restriction on a prisoners personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom (para 58). Deputy Judge Elvin QC highlighted that severe frustration would be caused by the continuation of male imprisonment and the consequential denial of surgery (para 60), something which Mr Spurr (Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice (para 21)) omitted to consider (para 60-61). The Secretary of State was criticised for not taking into account 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 (para 64) whilst only considering 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 (para 73). Moreover, the Secretary of State did not consider the possibility that the period might not be particularly long, but also 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 (para 73). Deputy Judge Elvin QC felt this was clear not only from the circumstances of the Claimant’s offending, but from Dr Travers’ reports (who maintained that keeping the Claimant in limbo would increase frustration, indicate a shift in her risk profile, risk of self harm and harm to others and deceitful behaviour increase (para 62)) which was not disputed (para 62-71) by the other experts (para 73). There were further criticisms of the Secretary of State ranging from adopting an ‘extreme position’ on the length of segregation (para 74) and ultimately concluded that ‘Secretary of State’s decision to continue to detain the Claimant in a male in prison is in breach of Article 8’ (para 78).

Deputy Judge Elvin QC did not consider it necessary to consider Article 14 based on the finding of Article 8 (para 79) but did find the Secretary of State’s decision to continue male detention as Wednesbury unreasonable (para 85). This is a ground which requires much higher threshold to be considered unlawful than human rights grounds, which serves to highlight just how flawed the Secretary of State’s decision to continue was.

This case demonstrated that post-operative reassignment surgery (as was in Goodwin) was not necessary to secure the Convention Rights of a transgendered individual provided that a GRC had been issued.

What about not having a GRC?:

The case of M v Revenue & Customs [2010] UKFTT 356 (TC) concerned a post operative transgender woman who would have to continue paying National Insurance Contributions (NICs) until she was issued with a GRC (para 1). It was argued that Article 8 as interpreted in Goodwin required recognition of the acquired gender of a post-operative transsexual person, something which the GRA 2004 did not, but instead imposed a disproportionate two-year waiting requirement (para 18). However, Judge Nicolas Paines maintained that s.9 of the GRA 2004 made it clear that prior to the issue of a GRC, a person’s sex for legal purposes is their biological sex (para 22).

Judge Nicolas Paines did refer to A v West Yorkshire Police [2004] UKHL 21, which is an important to summarise. The case concerned the decision of the Chief Constable rejecting the application of a post-operative transgender woman (Ms A) to join his force as a constable on the grounds that she could not search suspects (para 2-6). Ms A relied on a European Court of Justice (ECJ) case prior to the Chief Constable’s decision in P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795 which as Lord Bingham noted that it was held in very clear and simple terms that the then Equal Treatment Directive prohibited unfavourable treatment on grounds of gender reassignment (para 10) and ultimately the House of Lords ruled in Ms A’s favour. However, Judge Nicolas Paines felt that this did not assist the human rights argument (para 26) and felt that he was constrained to hold that the appellant a man at all times prior to the issuing of a GRC even if it was considered contrary to the ECHR (para 28).

What this case highlights just as Pink News did, is of the complexities faced with obtaining a GRC and the consequences of not obtaining one when if one is sentenced to prison. This would likely mean that prior to having a GRC, any post and pre-operative transgendered individual would be sent to the prison of their birth gender i.e. the wrong prison.

But there is still hope:

In the case of Identoba and Others v. Georgia – 73235/12 – Chamber Judgment [2015] ECHR 474 the ECtHR held that Georgia’s failure to prevent, and effectively investigate, attacks against an anti-trans/homophobia march violated Articles 3 (freedom from torture, inhumane and degrading treatment) and 11 (freedom of assembly) of the ECHR in conjunction with Article 14.

One of the important criticisms that the ECtHR made against Georgia was that ‘domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection’ (para 72). The risks and dangers associated with sending trans women to male prisons is well documented and even in the case of AB, R (on the application of) v Secretary of State for Justice & Anor the individual in question was segregated to a large extent from her male inmates, highlighting that the UK is indeed aware of this issue. The ECtHR held that:

‘[T]hat violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.’ (para 79).

And subsequently held that Georgia had failed in its positive obligations under Article 3 in conjunction with Article 14 (para 81).

Arguably the most important aspect of this was when the ECtHR held that ‘the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity’ (para 96). Such clarification was welcomed by Transgender Europe and with Peter Dunne (Enhancing sexual orientation and gender-identity protections in Strasbourg, The Cambridge Law Journal 75(01):4-8 · March 2016) correctly highlighting that:

‘Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights.’

Conclusions:

What does this mean for sending transgender females to male prisons (and vice versa)? Based on Identoba and Others v. Georgia an Article 8 (and possibly Article 3) argument in conjunction with Article 14 would better protect transgender individuals who neither had a GRC issued at the relevant time or did not undergo reassignment surgery. It would mean that decisions to send trans individuals to the wrong prison are open to challenge irrespective of whether a GRC is issued or are in the post-operative stage. Based on AB, R (on the application of) v Secretary of State for Justice & Anor and taking into account what was previously maintained, that being ‘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.’ It is very likely that the rights in question would be breached and thus would be in line with the Convention being practical and effective, not theoretical and illusory in the fight to protect the rights of all transgender people.

Rumpole in defence of the criminal bar…

Shelfie

I posted a ‘shelfie’ for the ‘books for prisoners’ campaign last week – and was just looking at it and noticed that one of the books on the shelf was ‘The Best of Rumpole’. Rumpole was (and is) one of my heroes – so I took down the book, and started reading the introduction.

RumpoleJohn Mortimer, who created and wrote the Rumpole stories, and who was himself a barrister, said some things in the introduction that reminded me why I find myself instinctively in tune with the criminal bar – though I am not a real lawyer at all. He wrote this introduction in 1992, but the words ring even more true today than they did back then. I’ll just repeat them as Mortimer wrote them:

“On the whole, lawyers are as unpopular as income tax collectors and traffic wardens. People think they tell lies and make a great deal of money. In fact, old criminal defenders like Rumpole don’t make much money and they stand up for our great legal principles – free speech, the idea that people are innocent until someone proves them guilty to the satisfaction of ten ordinary members of a jury, and the proposition that the police should not invent more of the evidence than is absolutely necessary. They protect the rights for which we have fought and struggled over the centuries, and do so at a time when jury trials and the rights of an accused person to silence are under constant attack from the government.”

That was back in 1992 – in 2014 the attacks from the government are far more intense, far more far-reaching, and sadly seem far more likely to succeed. We should be doing everything we can to defend the criminal bar from them, if we believe in any of these things. I don’t know about the rest of you, but I do.

Guest post: Go home, Superman!!

[Guest post by @Super__Cyan]

Superman 1

Would the Home Office dare do this to the Man of Steel? After all, he is an illegal alien. Maybe the Home Office would be more inclined if he looked like this?

Superman 2

(For those who do not know, this is Superman from Earth-Tangent)

This is just to point out the growing concern that officials of the Home Office are conducting ‘racist and intimidatory profiling’ see also this storify by @anyapalmer. This is not to discuss stop and search powers, more on general stop and search powers by yours truly can be seen here. Two things are worth some attention, first this image from the @ukhomeoffice twitter account:

Superman Home Office

And this page on the Home Office’s site which has the interesting headline of ‘Immigration offenders arrested in Home Office operations.’

Are there any human rights issues with these? Possibly, the image of the person being taken away could raise issues of privacy, and as we know that same old Article 8 of the European Convention of Human Rights might be engaged where it stipulates that:

  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.

Private life, the European Court of Human Rights (ECtHR) in Von Hannover v Germany 59320/00 [2004] ECHR 294 has pointed out that this includes a person’s picture (para 50). Let’s just assume for the sake of this post that the Home Office officials have lawful authority for taking those pictures, because if they didn’t that would be illegal. So if the officials have lawful authority, what then? Is the Article 8 issue now exhausted?

Not quite, because the subsequent use of those pictures can still leave the Article 8 issue live. This can be seen in Peck v United Kingdom 44647/98 [2003] ECHR 44 here the applicant was filmed by a CCTV attempting to commit suicide by cameras operated by Brentwood Borough Council in a public street. A few months later, the Council issued two photographs taken from the CCTV footage for publication in an article about the preventative benefits of CCTV. The applicant’s face was not specifically masked. Extracts from the CCTV footage were also shown on regional television in which the applicant’s face had been masked at the Council’s request.

The ECtHR pointed out that the Independent Television Commission considered the masking of the applicant was not adequate because the applicant’s distinctive features (para 16). Many of the applicants friends and family who saw the ‘Crime Beat’ programme recognised the applicant (para 21) including people who knew him, like colleagues (para 54). So the important questions would be, from that image, could the individual be identified? Is the obfuscation adequate? Because on the on the @ukhomeoffice ‘Photos and videos’ page there is an image of an official whose obfuscation is telling.

The ECtHR reaffirmed the position that interaction even within the public context falls within the ambit of Article 8 (para 57). Also reiterating that using photographic equipment that records in a permanent nature gives rise to considerations regarding interference with Article 8 (para 59). But here the applicant was not arguing against the use of CCTV footage but the that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference (para 60). The ECtHR concluded that the Council’s disclosure constituted a serious interference with the applicant’s Article 8 rights (para 61). This could be the case also for the present image.

After determining whether this was in accordance with the law and pursued a legitimate aim (which was satisfied para 64-67) the ECtHR also pointed out that ‘the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime’ (para 79). Drawing analogies with Peck and the image tweeted by the Home Office is that the person is arrested on ‘suspicion’ so there are some similarities. The ECtHR criticised the Council for not taking the utmost care in ensuring the media masked those images and stated:

In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant’s consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case (para 85).

For reasons such as these the ECtHR found the United Kingdom in violation of Article 8. This is not intended to suggest that this would be the likely outcome regarding the present images the Home Office has tweeted, but none the less great caution should be taken when releasing images of individuals to the public.

There is another issue that may be applicable here, and again it’s something to do with Europe, and something to do with human rights, a recipe for disaster! This time Article 6(2) of the ECHR may be relevant which states that:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

This disallows premature declarations of guilt by public officials. In Allenet de Ribemont v. France 15175/89 [2007] ECHR 112 emphasised that not being charged but being arrested falls within the ambit of being “charged with a criminal offence” (para 37). Kouzmin v. Russia (link in French) points out that public official does not need to be an already elected representative or employee of the public authorities at the material time. It may include persons of recognised public standing, from having held a public position of importance in the past or from running for elected office (para 59-69). It seems pretty sure the Home Office’s twitter account would satisfy this as it is a public authority (para 49).

The ECtHR in Ismoilov and Others v Russia 2947/06 [2008] ECHR 348 stressed that:

A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence.(para 166)

So essentially the Strasbourg Court is saying that poor choice of words could violate Article 6(2). The hashtag used in the tweet with the images states ‘suspected #immigrationOFFENDER.’ Offenders are those that have been convicted of an offence, a sex offender is someone who has been found guilty of a sexual offence, see generally F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17. Obviously the word suspected demonstrates the suspicion the individual is under, but adding ‘offender’ in the hashtag is certainly poor choice of words, it may have been more appropriate to tweet ‘suspected of #immigrationOFFENCES.’ As pointed out the headline on the website does not, however help the case for the Home Office as it clearly states of ‘Immigration offenders arrested in Home Office operations.’ Only if one reads the body of the text will they discern that those arrested are suspected of an offence, this is sadly only after the website states ‘immigration offenders’ twice before even mentioning ‘suspected.’

Calling someone a ‘bribe-taker’ was enough to violate Article 6(2) in the case of Butkevičius v Lithuania so it is not that farfetched to suggest ‘immigration offender’ may as the ECtHR said ‘encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority’ (para 53). Similar sentiments by Richard A. Edwards and Associate Professor @NoelleQuenivet regarding the presumption of innocence can be found here and an excellent post from the aspect of data protection here by @bainesy1969. I suppose this may all hinge on whether the individual is identifiable, but the ECtHR in Butkevičius v Lithuania noted that:

‘[Article 6(2)] will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law’ (para 49)

This implies a violation is possible irrespective identification. Regardless, the Home Office could not have trolled harder, as at the bottom of its site it asks:

Superman home office question

Perhaps the better question would be ‘Is there anything right with this page?’

The new University Law degree, Boris Johnson style

We at the UEA, would  like to let it be known that we offer the perfect law course for any women who, as Boris Johnson suggests, is coming to university primarily to catch and marry Mr Right.

There are many elements to that law degree, each of which can help you in this task – and help you to deal with the many problems that can occur in the process. Each has a part to play – and don’t forget that it’s not just about catching your man!

Tort Law – Whom to sue when he lets you down for misrepresentation

Contract Law – How to keep him for life

Criminal Law – What to do if Mr ‘Right’ takes a ‘playful tiff’ too far

Family Law – How to ditch him when he turns out to be Mr Wrong

Constitutional Law – Crucial, if you’re lucky enough to snare someone in line for the throne

EU law – What happens if Mr Right is a johnny foreigner?

Law and medicine – The ethical issues of tending to Mr Right’s wounded pride

Trust Law – How to turn all those empty promises into real money

Company Law – Understanding what Mr Right does all day in the City

Commercial Law – What’s yours is his, what’s his stays his

Land Law – How to sell your flat when it’s time to move in with Mr Right

Competition Law – What to do when you’re two-timed, and how to deal with unfair competition.

Employment law – Knowing what to do when your nanny or housecleaner calls in sick

Internet Law – When and how you can find out what he’s doing online

Media Law – How to get that key injunction when the paparazzi catch Mr Right out

It’s everything you need – who could possibly want more? It’s not as though women want education for any other reason.

The course texts will include regular subscriptions to Vogue, Cosmopolitan and Good Housekeeping, as well as ‘Men are from Mars, Women are from Venus’.

*Errr… in case you didn’t realise, this is a joke….

**This post inspired by the excellent David Mead, with contributions from others in the Law School at the UEA.