A transgender woman who raped a teenager while still living as a man has been jailed for eight years.

http://www.bbc.co.uk/news/uk-england-hampshire-35726292

At the end of the trial the judge said it was likely Ayrton would be held at a male prison.  (what do you think?)

Sentance apart, it's interesting, a quandry for the judge, I will see if I can get a full transcript of the proceedings and what submissions were made by the defence  barrister.   Stuck between the devil and the deep sea, incarcerated in a womans prison would be hell, likewise in a mens prison, might be raped, some might say poetic justice.   Legally, changing ones name does not make them legally female, althought considerations must be given under imprisonment ammendments GRA 2010

The case is actually straightforward. Ms Ayrton was sentenced as anyone else would be. The Judge will start with the Sentencing Guidelines.

Without more details of the facts, it is not really possible to say where it falls in the guidelines (see the table on page 10), but at a rough guess it is a 3B case. This gives a starting point of 5 years.

But we will have to see what the Judge made of the case when it come to sentence. It may be that the case is in a higher category due to the vulnerability of the victim or other factors that we are not aware of.

The question that the public have been more interested in is where Ms Ayrton will go to prison. The Judge stated that she will go to HMP Winchester (a mens prison), but it will be a matter for the prison service as to where she is housed.

It is clear that some steps will have to be taken to protect her as it is likely that Ms Ayrton will be vulnerable in custody. as a rapist in a womans prison or a transexual in a mens prison.   One has to consider the implications of her claim to be a woman, regarding the crime she was convicted of.

It is a very difficult and complicated area, that throws up all sorts of potential issues. There is probably not one right answer, and there are certainly no easy answer, but it is something that the Prison Service will have to get to grips with soon.

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 my attempt at straightening things out.

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. I don’t know any of the facts and – for the purposes of this 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

In the Case of Tara Hudson

This is where the press seem to have jumped to conclusions. The appeal was an appeal against sentence. according to the transcript the basics about the appeal 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.  Not about transfer to a womans prison.

Regarding Tara Hudson, the change of gender ammendment to the passport act came into effect in 2008.

3.5 Passports

The Passports Act 2008, section 11, offers an important avenue for recognition of the acquired gender of a transsexual person. For this purpose, a person who is transsexual may seek a passport in their new name and have their new sex entered therein. This does not confer any right or entitlement not connected with the purposes of the Passports Act. For instance, it would not alter the legal gender of the person for the purpose of marriage law or entitle one to a reissued birth certificate noting the acquired gender. which is a consideration for The Gender Recognition Panel.

If she was sentenced prior to that, technically she was legitimaely sent to a male prison, BUT if it was after was she aware of the right to change it and was her barrister ignorant of her rights.   Consideration i should have been taken into account she had, had surgery, presumably SRS, so under the sentencing guidlines under to 1999 Human rights act and subsequent addition to the new GRA avt in 204, which came into effect in 2005, she should have been sent to a female prison.   Someone made a big mistake on that one.

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 I turn to a public lawyer using his explanation.   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.

Conclusion (my considered opinion)

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  would have avoided more wildly inaccurate law reporting.

I think the Trial Judge could have used the following to set a precedent,

The option of Matter of first impression, to apply or make a ruling of precedent, case law. (Legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases)

http://gendersociety.com/forums/topic/10178/how-we-can-make-changes

No it does not mean someone can just say they are a woman, perhaps that why the judge in the case of Davina Ayrton hinted, about going to a male prison, only my opinion, think that was right, in the case of Sara Hudson they got it wrong.   There are references in the GRA about sentencing policy for Trans people, and guidelines for there accomodation, under medical supervision and proven history of gender identity issues.   I think judges should make recomendations to prison authorities after pre sentencing reviews.

That would be my application to a court, representing a trans defendant. regardless of the crime, if they were genuine, obviously its a lawyers duty to make the best case for their client, but they are not bound to fabricate or deceive a court in representation.

http://gendersociety.com/forums/topic/7775/ts-and-the-criminal-justice-system            October 10, 2010 5:18 PM BST 

Furthermore, those receiving hormone therapy will
be likely to have their treatment stopped, at least in the short term.
In order to avoid such issues, a recent court case33 suggests that the
prison service in England, Wales and Scotland must consider how best
to house trans prisoners to ensure that the establishment they are
placed in is suitable for their particular gender identity. For similar
reasons, the probation service should also consider how best to house
trans people released on parole and ensure that they are placed in a
facility of appropriate gender role.

Ministry of Justice, = offenders service.

1. Executive summary

Background

1.1. A transsexual person is someone who lives or proposes to live in the gender opposite to the one assigned at birth. The gender in which the transsexual person lives or proposes to live is known as that person’s acquired gender. A transsexual person may or may not have been diagnosed with gender dysphoria, which is described in detail at Annex A.

1.2. The Gender Recognition Act 2004, described in detail at Annex E, provides for transsexual people to apply to the Gender Recognition Panel for legal recognition of their acquired gender through the issue of a gender recognition certificate.

1.3. This PSI contains guidance on the care, management and treatment of transsexual prisoners – both with and without gender recognition certificates. It covers medical treatment, living in an acquired gender role, location in the estate, and searching, and explains the legal position.

1.4. Recent legislative changes and court judgments have had implications for how we care for and manage transsexual prisoners. This PSI reflects the advice that has been given about these changes and clearly sets out how prisons can comply with the law in a way that is safe for the transsexual prisoner and others.

Desired outcomes

1.5. To ensure that all transsexual prisoners are treated fairly and in accordance with the law.

Mandatory actions

1.6. Establishments must ensure that the care and management of transsexual prisoners is undertaken in accordance with this PSI.

Prison officials have reportedly expressed concerns that prisoners may be falsely declaring themselves transgender, out of a belief that they will be given access to privileges and separate facilities, and have prompted a review of current policy.

According to a report in the Sunday Times, up to 100 prisoners across the UK have told prison authorities that they identify as transgender but have not been officially diagnosed with gender dysphoria.

This follows new rules introduced in 2011 which remove the need for professional diagnosis, leaving self-identification as transgender as the only criterion. When the policy was introduced, trans rights campaigners estimated that UK prisons contain 20 to 30 transgender inmates at any one time.

Although these rules are ostensibly designed to make it easier to aid transgender individuals to transition while in prison, prison officials are worried that inmates believe that identifying as transgender results in “a soft life”.

See:- 

http://www.pinknews.co.uk/2014/07/28/uk-prison-officials-concerned-inmates-may-be-identifying-as-transgender-for-a-soft-life/

Prison accommodation for transgender people

17 January 11
Some of the legal and practical implications for transgender people involved in the criminal justice system

by Petra Boldt, Chris Phillips

http://www.journalonline.co.uk/Magazine/56-1/1009076.aspx

Julia, thankyou but under the various acts there are good provisions in force to cater for the transgendered in prison, complicated by the none genuine and the inability of the prison service to carry out the required duties of care.   Tara Hudson should sue the prison service.

Mmmmmmm if they sent him/her to a womans prison, life could be very uncomfortable, being a rapist. He might get some sort of SRS

Tara Hudson, Magistrates don't decide which prison a person is sent to regardless of gender the ministry of justice offenders/prison decides, magistrate cannot make an order or make a precedent, as it did'nt reach crown court or the high courts, precedent was not relevant, her legal council should have made representation to a higher authority to make such a decisiion, but if it had of been refered to a higher court, the sentence could have been more severe, it would seem she was advised to plead guilty in the magistrates court to get a lighter sentence in the original trial.   BUT it was still up to the Ministry of justice department to make the appropriate accomodation   order.

On the appeal with a judge presiding representation should have been made.   He would have explained the procedures and that it came under the remit of the ustice department.

(in my opinion)  her legal team should have made this a case when the original sentence was imposed at the magistrates court, drawing attention to the circumstances and demanding a review as above, she might have even been released on tag when it was discovered just how involved things can get..