Prison Allocation: How Is It Done?

On 8 September 2022 the Daily Mail reported that Sally Dixon, convicted of multiple sex offences against children between 1989 and 1996, had been sentenced to two consecutive nine year terms to be served in the women’s prison estate. This information was newsworthy because Sally Dixon was born male, committed those offences as a male and, as no Gender Recognition Certificate has been issued, remains legally as well as biologically male. 

Dixon will reportedly go to HMP Bronzefield, a women’s prison and young offender institution. Bronzefield also has a mother and baby unit, accommodating babies up to 18 months with their mothers. 

The Mail reported that it was the judge who sent Dixon to a women’s prison, which is wrong. A sentencing judge determines the sentence, but has no role in deciding where it will be served.

The rules on how this is managed are set out within the Ministry of Justice’s policy on The Care and Management of Individuals Who Are Transgender. 

When a transgender prisoner is identified, a Local Case Board is convened. If the issue is relatively simple (e.g. a female prisoner who identifies as male or non binary but has no GRC and wants to stay in the female estate) then the Local Case Board will complete the process. However if it is more complicated then a referral will be made to a Complex Case Board. This includes cases where someone wants to be placed in the estate of the opposite sex, as has happened here. 

The reader may initially be relieved to hear that the policy claims that “Decisions are free from bias, follow a clear, recorded process and are undertaken by staff who have a sound basic awareness of transgender identity.” The footnote mutters that this sound basic awareness is gleaned from an online e-learning module.

So what is the basis on which the decisions are made? The risks presented both to and by the transgender prisoner must be considered, as well as the prisoner’s own views. It is not the case that the prisoner gets a free choice, nor that a judge has magical dispensing powers. 

The policy provides: 

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 individuals in custody as set out below19.

Potential risks to the individual from others, or personal vulnerabilities of the individual, related to: (*indicates critical factors)

*Mental health and personality disorder;

*History of self-harm;

*Anatomy, including risk of sexual or violent assault

*Testimony from the individual about a sense of vulnerability, e.g. in a male
environment, in a particular prison, or from a particular prisoner or group of other prisoners;

*Risk of suicide;

*Medication including the absence of medication and the impact of known side effects

*History of being attacked, bullied or victimised;

*Intelligence including evidence of coercion, manipulation, or threats towards the individual

Family circumstances/relationships

Age

Physical health

Learning disabilities or difficulties.

Potential risks presented by the individual to others in custody and an AP related to: (*indicates critical factors)

*Offending history, including index offence, past convictions and intelligence of potential criminal activity- e.g. credible accusations.

*Anatomy, including considerations of physical strength and genitalia;

* Sexual behaviours and relationships within custodial/residential settings;

*Use of medication relating to gender reassignment; and use of medication generally;

*Past behaviour in custody, the community, in the care of the police, or in the care of prisoner escort services;

*Intelligence reports;

*Evidence of threats towards others;

*Mental health and personality disorder;

Learning disabilities or difficulties;

Substance misuse.

Views/characteristics of the individual: (*indicates critical factors)
*Birth, legal and presented gender;

*Strength of confirmation of presented gender, including medical treatments and full
evidence of gender identity (such birth certificate, or a GRC)

*View on establishment allocation, prison management and lifestyle.

4.19  Whilst the view of the individual on location should always be taken into account, this view must be put into the context of any risks that may be posed to the individual by others (including the risk that they could be threatened or manipulated into giving that view) and the risk that could be posed by the individual to others, whether in the men’s or the women’s estate.

This was the policy that was  unsuccessfully challenged in R (FDJ) v SSJ [2021] EWHC 1746 (Admin). The court was careful to set out its parameters: it was assessing the lawfulness, not the desirability, of the policy [para 72]. On the subject of the Case Boards, the court held: 

“The LCBs and CCBs are expert multi-disciplinary panels. Their members are the persons best placed to assess the risks, and determine the appropriate management of those risks, in a particular case. Those members will surely be well aware of the vulnerabilities of the women who are held in the female prison estate, and of the fear and anxiety which some of them will suffer if a transgender woman, particularly one with male genitalia and/or with a history of sexual or violent offending against women, is accommodated in the same prison. The members are expressly required by the Care and Management Policy^[2] to take into account – amongst other relevant factors – the offending history of the transgender woman concerned; the “anatomy, including considerations of physical strength and genitalia” of that person; and the sexual behaviours and relationships of that person. They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”

In other words, the LCB and CCB must consider the offending history of the prisoner in question when coming to their decision. They are not allowed to ignore it. 

One can perhaps see how a panel might reach the view it did in Dixon’s case. Transition here had begun in 2004 – after the offending period but many years before prosecution –  which suggests the transition was not a cynical attempt to game the system. The panel is entitled to take into account the nature of the offence, but would have to set against that that the last known offending was 1996. Intelligence as to ongoing offending can be taken into account. Sexual offending is notoriously hard to rehabilitate, but it seems unlikely that a panel would infer that there was a present risk simply from the nature of the offending if the last known or even suspected offending was quarter of a century earlier. Add to that the fact that the “risks to” Dixon  included a history of being attacked, bullied or victimised: former friends were reported as having embarked on a course of harassment for which they were sentenced in 2016. 

All of this leads to a wholly unsatisfactory situation in which a person biologically and legally male, with a history of repeated sexual offending, imprisoned for sexual offending, is nevertheless assessed as presenting an acceptable level of risk to female prisoners. Dixon may not present a significant risk to the women in prison in terms of future offending. But there remains the fact that members of the female prison population are  disproportionately likely to have suffered childhood sexual abuse and other forms of male violence. At best, requiring them to share accommodation with a male who has committed Dixon’s crimes is unlikely to do anything to assist their recovery or  rehabilitation, or with restoring their fragile trust in a system which, too often, has already failed them again and again.

As was highlighted in FDJ [para 82] the policy does not require the LCB or CCB to take into account the “the vulnerability of women prisoners, their frequent experiences of sexual assaults and domestic violence, and the fear and anxiety they may experience as a result of sharing accommodation and facilities with transgender women.”  Lawful though the policy is, it demonstrates an asymmetry which underpins the assumption that the integration of transwomen with women in the prisons’ estate is a desirable objective. Certainly this was the starting point of the court in FDJ. It is, in our view, profoundly sexist but, for good or ill, not all sexism is actionable.

Obviously women prisoners do not have to be assessed in the same way. But if a similar checklist were applied to them, the panels would be reminded of the practical context of their decisions, and be less susceptible to the inequity of awarding primacy to the psychological comfort of male born prisoners over the psychological, physical and sexual safety of women. 

Perhaps it is time that the policy began to require consideration of the vulnerability of women prisoners.