Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.

[Baroness Brinton (LD) [V]]

My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.

The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:

“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”


I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.

The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:

“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”


Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.

However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.

The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that

“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.

To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.

Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.

There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.

The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:

“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”


The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.

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Moved by

[Baroness Brinton]

214A: After Clause 124, insert the following new Clause—
“Home detention curfews
(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statement
This amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.

[Baroness Brinton (LD) [V]]

My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.

The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.

The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.

The Government have described a key objective of this Bill as follows:

“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.


These changes have the protection of the public at their core and ensure a firm but fair justice system.”


The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.

One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

[Baroness Brinton (LD) [V]]

I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.

The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.