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

The claimant, a transgender prisoner serving a life sentence, sought judicial review of the decision not to transfer her to the Vulnerable Prisoners (VP) wing and of the resulting restrictions on her regime. The court treated the decision as one of prison management and concluded that the decision not to transfer the claimant to the VP wing was lawful and not irrational. The judge held that the interference with the claimant's Article 8 rights was a proportionate response to protect the Article 3 and Article 8 rights of prisoners already accommodated on the VP wing, given the claimant's history of violence and threats towards alleged paedophiles. The court found no arguable Article 3 or Article 14 claim and no basis for mandatory relief compelling relocation; the application for judicial review was dismissed.

Background and parties:

• The claimant is a transgender prisoner at HMP Frankland, serving a life sentence with a minimum term of 18 years after conviction for murder. Since about October 2015 the claimant identified as female.
• The defendant is the Governor of HMP Frankland. The claimant represented herself; the prison was represented by the Government Legal Department.

Procedural posture and relief sought:

• This was a renewed application for permission to apply for judicial review after permission was refused on the papers by Andrew Baker J. The claimant originally sought a mandatory order to be relocated to the VP wing with a full regime and alternatively sought compliance with terms set out in a compromise proposal.

Issues framed:

• Whether the decision not to transfer the claimant to the VP wing was unlawful, irrational or disproportionate and therefore susceptible to public law review.
• Whether the treatment complained of engaged rights under Article 3, Article 8 and Article 14 ECHR and the Equality Act 2010.

Court's reasoning:

• The decision under review was, in substance, a prison management decision balancing the safety of prisoners already on the VP wing against the claimant's risk from other prisoners. The prison had legitimate concerns because the claimant had made threats and expressed hostility towards alleged paedophiles, and the VP wing houses many such vulnerable prisoners.
• The judge held that the refusal to transfer was not irrational. Any interference with the claimant's Article 8 rights was qualified and, in the circumstances, proportionate to protect the Article 3 and Article 8 rights of those already on the VP wing.
• The court found no arguable claim under Article 3 or Article 14 and no discrimination established on the papers. The claimant was directed to pursue any private law or compensation remedies (Part 7) if appropriate, but the application for public law relief lacked a realistic prospect of success.

Subsidiary findings and practical observations:

• The court emphasised that it is not the role of the Administrative Court to manage prisons and that such decisions are for prison authorities unless unlawful.
• The claimant had experienced serious distress and self-harm; she was for a time on the prison’s MPU unit and was then located in the prison hospital with some limited freedoms.

The application for judicial review is dismissed. The judge held that the decision not to transfer the claimant to the Vulnerable Prisoners wing was lawful and not irrational; any interference with the claimant's Article 8 rights was a proportionate measure to protect the rights of other prisoners and there was no arguable breach of Article 3 or of Article 14 or of the Equality Act on the material before the court.

Permission to apply for judicial review had previously been refused on the papers by Andrew Baker J; this judgment records a renewed application before Langstaff J on 21 February 2017.