Criminal Justice: Transgender People

Lord Faulks Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what assessment they have made of the current policy on the treatment of transgender individuals in the criminal justice system.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, criminal justice agencies are mindful of their duties under the Equality Act 2010. In particular, the National Offender Management Service policy on the care and management of transsexual prisoners states that prisoners are normally placed according to their “legally recognised gender”. The guidelines allow, however, some room for discretion and in such cases senior prison management will review the circumstances with relevant experts to protect the prisoner’s safety and well-being, and those of other prisoners.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Tara Hudson—a woman, after six years of gender reconstruction—was originally imprisoned at HMP Bristol, a tough prison for 600 men, causing her great distress. She was moved to a women’s prison only after the judges considering her appeal suggested that the Prison Service reconsider. How can prison allocation be so insensitive to transgender offenders, particularly in the light of the Minister’s Answer? Will his department ensure that in future, if a transgender defendant is at risk of a custodial sentence, full and careful thought will be given to allocation before sentence rather than after placement?

[Lord Faulks]

I am slightly surprised that the noble Lord has commented in such detail on Tara Hudson; he will be aware of the obligations under the Data Protection Act and the Gender Recognition Act 2004, which place restrictions on the disclosure of information relating to prisoners. As noble Lords will be aware, it is the policy of the Ministry of Justice and its executive agencies never to discuss individual cases. However, without breaching any of the obligations under those Acts, I can assure the House that she is being held in an appropriate environment and is receiving the care that she needs.

[Lord Cashman (Lab)]

My Lords, I agree entirely with the Minister on the approach to anonymity but, in this and other cases, there is deep concern about treatment within the criminal justice system. There are, however, good works being undertaken, such as at Her Majesty’s Prison Stafford. Will he reassure the House that there is ongoing training and awareness-raising of the issues of transsexuality, particularly when aspects of the criminal justice system are outsourced?

--- Later in debate ---

[Lord Faulks]

The noble Lord makes an important point. There is an emphasis in the prison officer training, which has been extended in its length and its content refreshed, on respecting the needs and rights of each individual prisoner in their care. There is a component of the mandatory training that addresses the Equality Act and the nine characteristics protected under that legislation, of which gender reassignment is one. Probation officer training has a consistent emphasis on meaningful engagement with individual offenders to support their rehabilitation.

[Lord Scriven (LD)]

My Lords, if the key issue is legal recognition, why, in the care and management of transsexual detainees for immigration purposes, does the Home Office manual state that it is appropriate to place transsexuals in the estate of their acquired gender,

“even if the law does not recognise them in their acquired gender”,

and why can that not be applied to the Prison Service as well?

[Lord Faulks]

As I indicated, the Prison Service tends to—correctly, I suggest—allocate prisoners according to their legally recognised gender, but there is a discretion to respond to the individual circumstances of a case, which is often as a result of a thorough risk assessment involving both the prisoner and other prisoners. Often, a multiagency panel will be involved. It is indeed the policy of NOMS to make sure that these matters are dealt with sensitively.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, returning to what the noble Lord, Lord Marks, said, the Minister seemed to suggest that this happens at the point of prison, which really is too late. Surely, when a person is leaving court, they need to be in the right van to go to the right prison. Should the decision not be taken earlier, before they leave court? Can he assure us that the staff there are properly trained and that the decision is taken at the right point?

[Lord Faulks]

The noble Baroness makes an important point and the National Offender Management Service is currently looking at ways to facilitate the proper recording of this information through the introduction of an equalities self-declaration form to be completed by all defendants who are adjourned for the preparation of a pre-sentence report. These details are very difficult to obtain while adopting appropriate sensitivity and recognising the obligations under the Gender Recognition Act.

[Baroness Hussein-Ece (LD)]

In light of some of the comments on previous cases, will the Government review the medical and bureaucratic hurdles for securing a gender recognition certificate under the 2004 Act?

[Lord Faulks]

The Gender Recognition Act is generally considered to be working well. It is not something to be undertaken lightly. Gender recognition certificates are granted by the gender recognition panel and I understand that there is no great criticism of the process. It is an important step forward from where the law was reluctant to recognise change of gender hitherto.

[Lord Patel of Bradford (Lab)]

Does the Minister agree that, while all the issues he has put forward are very practical and implementable, the problem is that the prison system is bursting at the seams? We have more than 86,000 prisoners and staff numbers have been cut year on year. How will officers prevent the homophobic attacks that have been occurring a lot in prisons, and how will they support the systems the Minister has put forward to help?

[Lord Faulks]

Our prison officers face a great many challenges and they perform their duties with admirable resolve and skill in often challenging circumstances. They have duties to all prisoners but particular duties to those who may be undergoing gender recognition. They are particularly aware of those challenges and will treat those prisoners with appropriate sensitivity.

[Lord Harris of Haringey (Lab)]

My noble friend Lord Patel raised an important issue about overcrowding in prisons. Under those circumstances, the sensitive consideration of to which prison a prisoner is to be allocated is made much more difficult simply because there are not enough vacant prison places for the allocation to take place.

[Lord Faulks]

In deciding on the appropriate allocation, there must sometimes be a period of hiatus. Where it is unclear what physical and anatomical risks an individual may present in their contact with other prisoners, they are often held in a secure environment away from other prisoners while their circumstances are clarified, so that a considered decision may be made after advice has been received from appropriate professionals.