Transgender woman loses appeal against sentence: Sentence to be served in male...

Transgender woman loses appeal against sentence: Sentence to be served in male prison

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Hudson/Bath Chronicle

On 30 October 2015, Tara Hudson had her appeal against sentence heard at the Crown Court in Bristol. Nothing unusual there? So why has the case piqued our interest?

Well, as usual, there is widespread mis-reporting as to the facts. So, here’s our attempt at straightening things out.

What happened?

Hudson was convicted of assault by beating and sentenced at the magistrates court to a 12-week custodial sentence. Hudson is a transgender woman who has lived all of her adult life as a woman and has undergone “six years of … surgery”. However, as her passport states that she is male, she was required to serve her sentence at HMP Bristol, a male prison. It was reported that she described her first week in the male prison – despite being segregated – as unrelenting frightening.

As is her right, she appealed against the sentence of 12 weeks. We don’t know any of the facts and – for the purposes of this blog post – they aren’t really that relevant.

Much of the press reports – and numerous tweets I have seen – criticised the court:

Transgender woman Tara Hudson loses appeal to be removed from male prison https://t.co/PRb4mg2yGE pic.twitter.com/1XbN2Y9uNp

— Metro (@MetroUK) October 30, 2015

#TaraHudson loses appeal to sentence to all-male prison https://t.co/87pIlg2pOt pic.twitter.com/2NA0XpdYSC — Bath Chronicle (@BathChron) October 30, 2015   Transgender woman Tara Hudson loses appeal against serving jail sentence in all-male prison https://t.co/7Q1OZKzP11pic.twitter.com/Z4jzdSxRJa — BBC News England (@BBCEngland) October 30, 2015   (Although the BBC headline is misleading, it should be noted that on the whole the article is fairly good.)

The nature of the appeal

This is where the press seem to have jumped to conclusions. The appeal was an appeal against sentence. We have a fact sheet on the basics about appeals from the magistrates’ court here. In essence, the hearing on 30th October – the appeal – was a rehearing. There was a Court Judge sitting with two magistrates.  The appeal was concerned only with the level of sentence, not where the sentence was to be served (more of that below). The court considered the guidelines and dismissed the appeal.  The court had no power to direct where the sentence was to be served, only whether to increase/reduce the sentence or to dismiss the appeal. In this case, they dismissed the appeal as they were not satisfied that the magistrates had incorrectly categorised the offence and imposed an incorrect sentence. 

So why is she in a male prison and how can she force the authorities to move her?

Well, the decision as to where someone serves their sentence falls under the remit of the Ministry of Justice and the Prison Rules. It is not down to an order of the court and is largely an administrative exercise.  So what do the rules say? Well here we turn to a public lawyer. The public lawyer, as it happens: Matthew Stanbury, a barrister at Garden Court North tweeting as @thepubliclawyer. He has blogged about the prison rules aspect of the case (the blog is very good and well worth checking out beyond this story). He says that the Ministry of Justice’s policy is perfectly clear and capable of producing the right result in Hudson’s case. He quotes the policy: “4.1 Prison Rule 12(1) provides that women prisoners should normally be kept separate from male prisoners. 4.2 In most cases prisoners must be located according to their gender as recognised under UK law. Where there are issues to be resolved, a case conference must be convened and a multi-disciplinary risk assessment should be completed to determine how best to manage a transsexual prisoner’s location. See Annex D for more details”.  Annex D then says: “D.1 Some transsexual people will be sufficiently advanced in the gender reassignment process that it may be appropriate to place them in the estate of their acquired gender, even if the law does not yet recognise they are of their acquired gender. In such cases establishments may wish to seek guidance from the Women’s Team. D.3 The case conference should review the prisoner’s individual circumstances and make a recommendation to the relevant senior manager above establishment level who will make the final decision”. Matthew notes that the reason for this situation is that the case conference does not happen prior to the sentencing hearing, the resolution of which could, in this case, have avoided the entire issue. Read the blog for more of a discussion about the issues.

Conclusion

So we see that the press reports are directing their anger and disgust at the wrong branch of state: the courts here performed their duty within their remit, determining the question of whether or not her sentence was too long.  The issue of where she serves her sentence (which undoubtedly should be in a female prison) is left up to the prison authorities. It is hoped that a case conference will be organised as a matter of haste and the issue in this case resolved.  As for the press, a little bit of research (or an email or two to us, or Matthew, for example) would have avoided more wildly inaccurate law reporting.     

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

4 COMMENTS

  1. (I hope it’s in order to leave a comment several months after the article.)

    I have no disagreement with your main point, that it is not the court’s remit to decide where sentence is served.

    However the article also says that this “undoubtedly should be in a female prison”. Clearly in your view, there is no room left for debate over whether gender should be determined on the basis of feelings or of objective reality. The matter has already been firmly settled in favour of feelings by the time-honoured method of proof by repeated assertion. Here we have someone with plenty of testosterone and a history of violent offending, yet it goes without question that they should be held with women, whom the segregated system was designed to protect.

    Meanwhile, if an older person insisted that they be held in a young offender’s institution because they FEEL young, it would be laughed out of court. (Or, should I say, laughed out of case conference?)

  2. Every individual case needs judging on its own merit.

    There are many women who have a history of violent offending … yet we do not say they must be a man. Levels of testosterone are no judge either.

    Either society accepts that some individuals are transgendered and that includes imprisoning them in a facility suitable for the gender they assert themselves to be (backed up by professional reports). Or society says there is no such thing as being transgendered. The issue is that currently we have a halfway house.

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