H, R (on the application of) v Secretary of State for Justice

The claimant is a transgender prisoner convicted of serious sexual offences who sought judicial review of the Secretary of State for Justice for failing to provide work specifically linked to sexual offending. The claimant relied on five duties: (1) a public law duty (as identified in R (Wells) v Secretary of State for Justice) to provide relevant prisoners a reasonable opportunity to demonstrate reduced risk; (2) a duty implicit in Article 5 ECHR (per R (Kaiyam)); (3) a duty under Article 14 ECHR not to discriminate; (4) duties under the Equality Act 2010 (sections 19 and 29); and (5) the public sector equality duty in section 149 of the Equality Act 2010.

The court examined the factual history including a detailed forensic psychology assessment (the Lewis assessment) recommending non-SOTP first-stage work (therapeutic community or schema-led work) because of complex interpersonal and personality factors. The defendant had arranged and delivered a sequence of interventions (thinking skills, substance-related programmes, CBT and specialist assessments), applied for therapeutic placements, sought alternatives and ultimately transferred the claimant to a specialist sex-offender site for further assessment.

The court held that completion of an accredited Sex Offender Treatment Programme (SOTP) is not invariably a prerequisite for release, that the defendant acted reasonably in sequencing assessment and treatment in the claimant's complex case, that there was no unreasonable delay amounting to a breach of the public law or Article 5 duties, and that there was no evidence of discrimination under Article 14 or the Equality Act 2010. The claim for judicial review was dismissed.

Background and parties: The claimant (referred to as H), born male and presenting as transgender while in custody, was sentenced in 2009 to detention for public protection for sexual offences committed as an 18-year-old male against a boy. The minimum term expired on 7 March 2013. The claimant instructed judicial review against the Secretary of State for Justice, asserting failures to provide appropriate offending-behaviour treatment and alleging discrimination.

Nature of the claim and relief sought: The claim (issued 10 July 2014) sought relief for breaches of public law duties (to provide meaningful opportunities to reduce risk and follow policy), breaches of Convention rights under Articles 5 and 14, and breaches of the Equality Act 2010 (sections 19, 29 and 149). The claimant sought orders compelling appropriate assessment and access to sex-offender-specific interventions.

Procedural posture: Permission to apply for judicial review was granted by Collins J on 8 October 2014. The substantive hearing took place before Walker J on 28 April 2015, with judgment delivered 4 June 2015.

Issues framed by the court:

• whether the Secretary of State had an enforceable duty (public law) to provide transgender sex offenders access to accredited SOTP or otherwise adequate systems;
• whether the State breached the duty implicit in Article 5 by failing to provide a reasonable opportunity to rehabilitate;
• whether treatment decisions or delays amounted to unlawful discrimination under Article 14 or under the Equality Act 2010 (including s149 positive duties);
• whether the defendant had complied with relevant sentence planning policy and provided meaningful, sequenced risk-reduction work.

Court’s reasoning and conclusions: The court accepted as central the Lewis forensic psychology assessment which identified complex personality and relational problems and recommended therapeutic-community or schema-focused work prior to, and potentially instead of, immediate SOTP participation. The court emphasised that the Parole Board must not be impermissibly fettered into requiring completion of an accredited programme in every case; alternative pathways to risk reduction can be appropriate. The defendant had arranged and delivered multiple interventions (including CBT and other programmes), pursued placements in therapeutic communities, sought alternative specialist services (e.g. Millfields, Portman Clinic) and progressed psychological assessment. The court concluded there was no unreasonable failure to provide meaningful risk-reduction work given the complexity of the claimant’s needs, no breach of Article 5, and no evidence that treatment sequencing or placement decisions were driven by or amounted to unlawful discrimination on grounds of gender reassignment. The claim was dismissed.

Subsidiary findings: the court noted the claimant had been informed of assessment outcomes and available alternatives; it recorded that some correspondence (a pre-action reply) was not provided by the defendant but found on the evidence that the claimant was aware of the key steps taken; the court also recorded that some transgender prisoners have undertaken SOTP without issue (evidence of at least 16 participants).

The application for judicial review is dismissed. Walker J concluded that the Secretary of State had not breached the public law duty identified in Wells nor the Article 5 ancillary duty identified in Kaiyam, that the defendant’s sequencing of assessment and treatment in this unusually complex transgender sex-offender case was reasonable, and that there was no established discrimination under Article 14 or the Equality Act 2010. The judge relied on the Lewis assessment, on the defendant’s evidenced steps to provide non-SOTP and SOTP-relevant interventions and on the absence of any unreasonable delay or systemic failure.