Transgender prisoner management: urgent case review correspondence

Scottish Prison Service letter

To: Keith Brown, Cabinet Secretary for Justice and Veterans
From: Teresa Medhurs, Chief Executive Scottish Prison Service, 8 February 2023

I attach a report outlining the main recommendations of our urgent case review, into the management of a transgender individual in the care of the Scottish Prison Service, for your information.

I instructed an urgent case review into the circumstances and decision making rationale underpinning the management of the individual following their court appearance, to their admission to custody to the female estate on the evening of Tuesday 24 January and then transfer to the male estate on Thursday 26 January.

A case review discussion took place on Tuesday 31 January with senior SPS officials involved in the management of the individual. The aim of this review discussion was to systematically and rigorously assess all facts and evidence informing the decision making process. Independent oversight of the case review was conducted by the Interim Deputy Chief Executive (DCE) of SPS and then ultimately myself as Chief Executive of SPS. A final report was submitted to me on Friday 3 February.

I have fully considered the content of the urgent case review report and at the outset I can offer the following assurance:

• at no time during this period were any women in SPS care at risk of harm as a consequence of the management of the individual and
• SPS policy was followed during each decision making process and risk assessment

I have accepted the recommendations of the review and you will note, in the main, that they will require collaboration across justice partners. Some of these recommendations have already been initiated by SPS, with a view to the remaining recommendations being taken forward shortly.

I am of the view that it is not necessary to share the entire report as there is a significant amount of personal detail relating to the individual and that of staff which would not be appropriate to disclose.

I trust that this letter and appended Appendix F to the report provides sufficient assurance of the rigorous review that has been conducted, offers reassurance around the facts of the case and highlights the immediate actions already in place.

You will be aware this comprehensive review was undertaken at pace, however, I will ensure that SPS continue to factor in all of the learning identified into our ongoing Gender Identity and Gender Reassignment (GIGR) Policy Review, which is currently well underway.

The review has confirmed the following facts in relation to this case:

• On 24 January 2023 an individual was remanded to custody convicted of two counts of Sexual Offences (Sexual Offences (Scotland) Act 2009 (rape) and Sexual Offences (Scotland) Act 2009 (Domestic).
• As the individual did not arrive from either Police Scotland or SPS custody, there was limited information available prior to them being remanded and then escorted by our contractor GeoAmey.
• The individual’s warrant annotated that they were to be admitted to custody at HMP Barlinnie. It is the SPS’ understanding that the receiving establishment identified on an individual’s warrant is generated at court based on “the sex” that is on record.
• Having been notified by our escort contractor that the individual was to be admitted to SPS custody and as further information gathering was ongoing, it was decided by SPS that the individual should be diverted to HMP&YOI Cornton Vale in alignment with current policy.
• Admission procedures ascertained that the individual would be accommodated within the Separation and Reintegration Unit (SRU) and a decision to do so was made under Rule 95(1) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011. This means that the individual was located in an area where they were separate from the general prison population. At no time did the individual come into contact with any other prisoners at the establishment.
• A transgender case conference was held on Wednesday 25 January chaired by SPS senior management and attended by relevant partners which concluded that further information from partners was required in order to better assist risk assessment. Location and accommodation decisions relating to transgender individuals in our care are made as a result of a multi-disciplinary assessment of both risk and need at a transgender case conference, therefore further information was sought to inform further risk assessments. The individual remained on Rule 95(1) throughout the time.
• On the morning of Thursday 26 January, an operational decision was taken by SPS Senior Management due to the level of risk and remaining uncertainties in the case, to move the individual to the male estate. An immediate transgender case conference was held with all relevant partners at the establishment.
• On admission to the male estate, it was concluded reasonable and proportionate to remove the individual from association under Rule 95(1) until risk elements were evaluated.
• I can confirm that since admission the individual has been managed in line with the current policy including convening case conferences to ensure the appropriate management of the individual within the current location

It is clear from the conclusion of the review that SPS decisions were in keeping with existing SPS policies and procedures in shaping operational decisions. The application of the current policy and prison rules meant that the individual had no access to women due to their removal from association.

As you will note, progressing the recommendation for better information sharing pre-custody and post admission to custody for transgender people in our justice system has already been initiated by us in collaboration with key justice partners. This will include communication protocols and development of a Memorandum of Understanding to support decision making on admission and subsequent case conferences.

Additional measures

In addition, you will also be aware that I instructed an urgent case review of all transgender women currently managed within the prison estate. In addition, I have implemented the following measures:

• Full multi-disciplinary case reviews are underway for each transgender person currently in prison custody
• Until these reviews are complete, any transgender person currently in custody and who has any history of violence against women – including sexual offences – will not be relocated from the male to the female estate. In addition, any newly convicted or remanded transgender prisoner will initially be placed in an establishment commensurate with their birth gender
• If there are exceptional circumstances which support a recommendation that a transgender individual with any history of violence against women be relocated to, or placed in, any part of the prison estate which does not match their birth gender, then I will seek Ministerial approval to do so on a case-by-case basis
• I have instructed the development of interim Standard Operating Procedures (SOPs) to be put in place with immediate effect to ensure that these above measures are put into operation consistently across the prison estate

Finally, I must reiterate that SPS remains committed to providing person-centred care to our entire population; this includes managing any identified risks, which are not exclusive to transgender people in our care.

In particular, staff in our establishments have demonstrated their long-standing expertise and strong track record in the management and care of an increasingly complex prison population.

My priority remains the health, safety, and wellbeing of all people in our care, many of whom are the most marginalised in our society, and that of our staff.