Hunnisett, R (on the application of) v The Governor of HMP Frankland

Judicial review is concerned with the lawfulness of a public authority’s identifiable decision. It does not enable the court to manage a prison or determine a broad complaint about the consequences of imprisonment without a decision susceptible to public law review.

A decision not to place a transgender prisoner in a vulnerable persons’ wing was lawful where the prison reasonably considered the risks to other prisoners, including their rights under the European Convention on Human Rights. The interference with the claimant’s Article 8 rights was not disproportionate, and there was no arguable breach of Articles 3 or 8. A claim for compensation or wider relief may require ordinary civil proceedings.

The claimant, a serving prisoner at HMP Frankland who had transitioned from male to female, sought permission for judicial review. Permission had previously been refused on the papers by Andrew Baker J.

The claim originally challenged the decision not to transfer her to the Vulnerable Persons’ Wing. She argued that the decision exposed her to threats and restricted her access to work, education and religious services. She also alleged breaches of Articles 3, 8 and 14 of the European Convention on Human Rights and discrimination under the Equality Act 2010.

At the renewed hearing she advanced a broader challenge to her treatment in prison. The central issue was whether the refusal to transfer her to the Vulnerable Persons’ Wing was unlawful or whether the wider complaints were suitable for judicial review.

1. Application dismissed. The court’s task was to decide whether there was an arguable public law challenge to the decision identified in the originating application. It was not to manage the claimant’s placement or regime within the prison.

2. The refusal to transfer the claimant to the Vulnerable Persons’ Wing was lawful. It was not irrational. The prison had to consider not only the claimant’s vulnerability as a transgender prisoner but also the safety and Convention rights of prisoners already accommodated in that wing. The prison considered that placing the claimant there would create a risk to those prisoners because of her history and previous threats.

3. The decision did not arguably breach Article 3 or Article 8 of the European Convention on Human Rights. Article 8 was engaged by the restrictions potentially resulting from the refusal, but it was a qualified right. The interference was not disproportionate when balanced against the rights to life and freedom from ill-treatment of prisoners in the Vulnerable Persons’ Wing.

4. There was no material basis in the papers for concluding that the claimant had been discriminated against because she was transgender. The prison remained under an obligation to protect her, so far as possible, from risks arising from that characteristic, but the court could not grant relief on the broad complaint advanced.

5. Complaints about injury for which compensation was sought, or about requiring the prison service to act differently, might be pursued by a Part 7 claim on a proper legal basis. They did not convert the present claim into a suitable judicial review challenge. The renewed application therefore had no realistic prospect of success and was dismissed.

Permission for judicial review was refused on the papers by Andrew Baker J. The claimant renewed the application before the Administrative Court, which dismissed it.