Criminal Justice Committee

Meeting date: Wednesday, February 22, 2023

Official Report 748KB pdf

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Transgender Prisoners and Scottish Prisons

Good morning, and welcome to the sixth meeting in 2023 of the Criminal Justice Committee. There are no apologies this morning. Our first item of business is consideration of the Scottish Prison Service’s urgent case review and the housing of transgender prisoners. I refer members to paper 1.

I intend to allow around 45 minutes for this session, after any opening statements. I welcome Keith Brown, Cabinet Secretary for Justice and Veterans, Mr Neil Rennick, director of justice at the Scottish Government, and Ms Teresa Medhurst, chief executive of the Scottish Prison Service.

I invite Ms Medhurst to make some brief opening remarks, followed by the cabinet secretary.

Good morning, convener and committee members. Excuse me—I have a bit of a cold, so I will try to work through that as we go through the session.

Thank you for inviting me this morning. I hope that the session will allow me the opportunity to provide you all with greater clarity and understanding about how the Scottish Prison Service manages all people in our care. Although I know that the focus today is on the management of transgender individuals, my priority remains the health, safety and wellbeing of everyone who visits, lives in and works in our prisons, some of whom—[Temporary loss of sound.]—as well as the most marginalised and vulnerable in our society.

The SPS has a proven track record of managing complex people. Society in general is subject to constant change and, in time, those changes impact on our own prison communities and affect how we manage those in our care. That requires us to evolve and adapt our operations to meet new challenges and changing dynamics.

Every person sent to us by the courts comes to us with their own history and life circumstances that define them as individuals. That is why an individualised, person-centred approach is fundamental to our role as custodians and our position within the wider justice sector as a modern prison service. Daily, prison officers have to manage a range of often conflicting demands and risks presented to them by the individuals we care for, who can range from someone who belongs to a known serious and organised crime group to a first-time offender about whom we have little or no knowledge.

Decisions on the management and placement of individuals, including transgender individuals, are made on an individual basis, informed by a multidisciplinary assessment of both risk and need. Such decisions seek to protect the wellbeing and rights of the individual, as well as those of the people around them, including staff, in order to achieve an outcome that balances risks and promotes the safety of all people who live and work in prisons.

As part of our approach to operational risk assessment, proportionate management controls, such as removing an individual from contact with the wider population or additional security measures, will be introduced where new information suggests that that is necessary. Such decisions are not taken lightly. When such measures are required, the key consideration is always safety rather than punishment. That balanced approach helps to manage a perceived risk or threat, while continuing to support the wellbeing of the individual, with the aim of integrating the person into an appropriate mainstream location as soon as practicable.

The population dynamic, which is constantly shifting and changing can be affected by both internal and external factors. That requires a responsiveness using well-established and practised operating systems in managing intelligence, profiling risks, making tactical interventions and applying an individualised case management approach through managing our policies and practice. The foundation of that approach is the relationships that exist and are developed between our staff and those in our care. Those relationships are key to creating a solid foundation for delivering effective services. Staff support people through difficult times, guiding them through their journey in custody and preparing them for an eventual return to society.

I have more than 30 years’ operational experience working in prisons. They are unique environments and unlike other parts of the public sector. I have been the governor in charge of both male and female estates and have managed both trans women and trans men in custody. I also led the development of our transformative women’s strategy in response to the Dame Elish Angiolini report in 2012, which is delivering a step change in how we manage women in our care. Our trauma-informed and innovative strategy is supporting women to regain their independence and to learn skills that will support the best possible chance of a successful return to their communities.

The SPS remains committed to providing person-centred care to our entire population, including managing identified risks that are not exclusive to transgender people in custody. That is supported by our staff, who continue to demonstrate long-standing expertise and a strong track record in the management and care of an increasingly complex prison population.

Finally, I reiterate the point that I made at the start of my statement: my priority remains the health, safety and wellbeing of our staff and everyone in our care.

Thank you for the opportunity to be here today to answer questions regarding the management of transgender prisoners and the recommendations of the urgent case review. There have, of course, been concerns expressed about the issue. It is important to provide assurance around the safety of all people in the care of the SPS.

In a democracy, it is perfectly legitimate to raise questions and seek assurance. However, the wider discussion around gender identity has risked stigmatising transgender people, which will have a real and direct impact on both transgender people and the broader community of which they are part. As MSPs, it falls on us to provide responsible, rational and compassionate leadership. I hope that the committee would agree that it would be abhorrent if any legitimate scrutiny of the matter was allowed to fuel the view that trans women somehow pose an inherent risk to women. That is clearly not the case, and I remain concerned that that view is even further marginalising trans individuals.

As in any discussion involving the criminal justice system, we must also never forget that the victims who will be affected by these instances are also affected by the things that we say. That is true of the specific case to which the lessons learned review relates, and I pay tribute to those women for their bravery.

As I said in Parliament, I am keen that the discussions around the issues and the lessons learned review are calm and founded on fact. I am confident that, approached in that way, you will be reassured around both the lessons learned and the wider management of individuals in the care of the Scottish Prison Service.

I commend the SPS’s expertise—you have just heard some of the bona fides of the people involved in that process—and their track record of managing the risk posed by individuals in their care.

A number of high-profile individuals have been discussed in the media and mentioned in Parliament. I am also aware that there are other transgender individuals in the prison estate who have been living in their allocated establishment for lengthy periods of time without any issue or concern.

It remains a long-standing principle of the Scottish Government and the SPS that we do not comment on individual cases, and although that approach has been particularly challenging in this instance, I do not consider it appropriate to forensically examine the details of every individual case in a public forum.

The current SPS policy around the management of transgender individuals has been in place from 2014. On 29 January this year, as a result of the specific circumstances of the case that has been mentioned, I announced that a number of interim measures had been decided by the SPS. First, no transgender person with a history of violence against women, which includes sexual offences against women, who was already in custody would be moved from the male to the female estate. In addition, no newly convicted or remanded transgender prisoner with any history of violence against women would be placed in the female estate. Any case that required such a move would be in exceptional circumstances and would require to be approved by ministers.

A lessons learned review into the circumstances of the Isla Bryson case was also conducted by the SPS, and I am very grateful to the Prison Service for doing that work and for its conclusions and recommendations. Although the full report will not be published due to the significant amount of personal data relating to both the individual and SPS staff, I wrote to the committee on 9 February in that regard and I published a letter and key recommendations from the SPS. It might be helpful to mention briefly some of the key points in it.

As we have heard, Teresa Medhurst confirmed that SPS policy was followed during each decision-making process and risk assessment. Most significant, she has also confirmed that at no time during that period were any women in SPS care at risk of harm as a consequence of the management of the individual. I am mindful that that assurance points to the effective operation of SPS practice and the existing policy.

Teresa Medhurst has also confirmed that, after the initial risk assessment procedure and multidisciplinary case conference that were undertaken in terms of that policy, the individual concerned was transferred to and remains in the male estate. As additional assurance, I advise that full multidisciplinary reviews are also currently under way for each transgender person who is in custody.

The Scottish Prison Service indicated that the protective measures that were originally put in place would be amended to take account of the lessons learned review and developing operational experience. Critically, it remains the case that any transgender person who is 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. However, the SPS has decided that any newly convicted or remanded transgender prisoner, not just those with a history of violence against women, will initially be placed in an establishment that is commensurate with their birth gender. That wider measure reflects operational practicalities, which I am sure that Teresa will be able to talk to if you require. In the light of the lessons learned review highlighting the lack of available information sharing at the pre-custody and post-admission stage, that is a precautionary approach that I commend. Again, in exceptional circumstances in which a move contrary to those measures is required, ministerial approval will be required and sought.

A key area for improvement from the lessons learned review is for improved information sharing and communication between justice partners and the SPS to allow for advanced alerts to ensure that there is a clearer approach to the transfer of transgender individuals from the court to SPS custody.

The review also supported the current approach to individualised risk assessments and the balancing of rights, but it highlighted the need to consider improvements to the admissions process, particularly around the weight attached to an individual’s offending history.

Teresa has indicated that she has accepted those recommendations and that the SPS has started work to action them. The SPS has confirmed that the lessons that have been learned will also feed into its on-going review of its policy on the management of transgender prisoners.

As we have heard, the management of any group of prisoners involves an element of risk; clearly, that is not unique to prisoners who are transgender. The approach that the SPS takes must be based on its legal obligations and on the human rights and trauma-informed approach that it takes to all those in its care. Crucially, it must protect the safety of all prisoners and staff.

Along with the chief executive, I am happy to answer any questions that the committee has on these issues.

09:15  

Thank you very much. We will now move to questions. I intend to allow 45 minutes for members to ask questions.

I echo what the cabinet secretary said: we are not suggesting that trans women inherently pose some kind of threat. The issue has always been about predatory men exploiting gender self-identification. Indeed, that is why we are here to talk about this particular case.

A victim of this male-bodied double rapist—and his wife—has said that his claim to be trans is a “sham”. Cabinet secretary, you told the BBC that, in this case, you need to accept that people identify as women. Nicola Sturgeon has repeatedly been unable to answer this particular question in relation to this individual. Kate Forbes has said:

“No rapist can be a woman. Isla Bryson is a man”.

Who is right?

I am not here to discuss other people’s views. I am here as the Cabinet Secretary for Justice to answer questions about the Prison Service’s policy. I would say—

But if this goes to the heart of—

Let me finish my point. You have asked a question.

We have very little time.

If you have other questions, you can ask them after I have finished my answer, please.

Okay. Given the amount of time that we have, I do not want to—

We are here to discuss the specifics of the lessons learned review. I would be grateful if you could refine your questions to focus on the review.

Okay. The reason why I think that my question is relevant is that it goes to the heart of where we are now. The Prison Service is conducting a review. If senior politicians in the governing party all give different answers to a very basic question about this particular offender, that is germane to the issue. Cabinet secretary, if you are not prepared to answer the question, that is fine and I can move on, but I can give you another opportunity, if you like.

I was trying to answer, but you would not allow me to answer. That was the point that I was trying to make. Can I try to answer now?

Okay. Who is right in terms of definition?

You are asking the same question. I ask you to ask another question.

Convener, I am happy to answer the question, but I would like to try to get through my answer before being interrupted, if possible.

As justice secretary, my responsibilities for the prison estate are, in my view, what are germane here. Prison rules—this addresses the point that Mr Findlay has made—state that people are

“able to self-declare that they are transgender and are supported to express the gender (or non-gender) with which they identify, with staff using correct pronouns.”

It is important to mention that, because those are the rules in England and Wales, which are underpinned by United Kingdom legislation over many years. That is the process that is followed by prisons in Scotland.

When did you find out that this particular prisoner had been sent to a women’s prison?

I found out when it became evident from the media. I am not normally uniformly told of every prisoner who is sent to prison.

Even though this was quite a high-profile and on-going High Court case, and people were aware of the issue, nobody had informed you.

I have just answered that question.

Once the transfer became known about, you initially defended the decision. The following day, the First Minister announced that the prisoner was being removed. Do you now regret defending the decision initially?

At the time, I said to the Parliament that I had faith in the basis on which the Scottish Prison Service deals with prisoners who are transgender. It has an extremely strong track record on that. It has managed to protect women, other prisoners and staff. I expressed that support for the Prison Service at the time, and I am happy to express it again now.

On 31 January, you told the Parliament that

“The SPS was, of course, aware of ministers’ views—it would be, frankly, bizarre if the SPS had not been aware of ministers’ views”.—[Official Report, 31 January 2023; c 16-17.]

You said that in relation to the decision to remove the prisoner from the female estate. How exactly were those views made known?

As you have mentioned, there was a substantial degree of publicity around that. Obviously, ministers have discussions with officials and the agencies for which they have responsibility.

As I say, the process that was followed in this case is the process that is always followed, and I have faith in that process. There is very little evidence to suggest that how this individual prisoner was dealt with would have been different in any other circumstances.

I repeat the point: I have faith in the Scottish Prison Service’s ability to deal with the issue. Changes, which I mentioned in my opening statement, have been announced to provide further reassurance, and I think that that was the right thing to do.

How were the Government’s views made known to the Prison Service?

I have just explained that, convener.

Perhaps I can—

I am not entirely sure that we know how the Government communicated to the Prison Service its dissatisfaction with that prisoner being in the female estate. The partial review that we have in front of us does not explain that, so it is a perfectly reasonable question. Perhaps the Prison Service could tell us how the Government made its views known.

During a conversation with officials, I was asked about where we were in the case management of that individual, because the case management process applies almost immediately, particularly when somebody is held in segregation. It was during that conversation with officials that I was made aware of ministers’ views on the situation.

I will make this very clear: the placement of prisoners, unless it is a policy matter, is an operational matter for the SPS. In respect of the initial placement of the individual, and the subsequent decision to move the individual, those decisions were taken by operational people. They were in no way ministerial decisions; they were decisions for operational people in the SPS.

Going back to the contact, was that conversation instigated by Government officials?

It was a telephone call to me, yes.

Was the call from the justice directorate?

It was from me.

And it explained that the justice secretary and the First Minister had concerns.

It explained that there were ministerial concerns in Government and that there was a requirement to understand where we were in the process. That is what I was asked, and I checked where we were in the process.

As I say, in relation to the decisions that were taken in respect of an individual case, which we should not be discussing, any decision on the operational placement of an individual is for the Prison Service.

The representation that was made to you was more general—as in, “We have these concerns”—and was not a suggestion that you should act in a certain way.

No; there was no suggestion that I should act in a certain way. General concerns were raised about the individual, and a request was made to better understand where we were in the process.

I will move things on, so that other members have the opportunity to ask questions. If we have time, I will come back to that issue.

Good morning. For clarity, Ms Medhurst, how long has the Prison Service been managing transgender prisoners in Scotland?

To the best of my knowledge, for at least 15 years. That has included trans men and trans women. I have experience of managing transgender prisoners in the male estate and in the female estate.

In the lessons learned review, you said that

“newly convicted or remanded transgender prisoners will initially be placed in an establishment commensurate with their birth gender.”

Is there a timescale on that? Does the individual have to appeal to be moved to a different prison?

The cabinet secretary’s statement on 29 January gave a clear indication of the types of offences that should be debarred from that initial placement in the female estate. In order for me to effect that operationally, I need to develop a standing operating procedure.

That takes time, because a range of factors around the admission process need to be considered. We are doing a detailed piece of work with our partners on the information that we receive on admission, which will inform the standard operating procedure. Once that standard operating procedure has been developed, we will implement it, and that should provide a more nuanced position with regard to effecting the intention of the cabinet secretary’s full statement, as opposed to the blanket approach that we have to take, which is a preventative measure.

Each individual will undergo a case conference as soon as is possible. Normally, we try to pull together a multidisciplinary case conference on an individual at the point of admission when we know that they are a transgender individual and on the following day, in an effort to gather as much information as possible. If circumstances arise in which we consider that the individual does not meet the threshold, we can assess the best location for that individual, using all the information that is available to us, given the needs of the individual and the risks to them and to others.

What I am trying to get at is whether the individual has the right to appeal against the decision on where to send them.

As with any decision that is taken on an individual in custody, there are always rights of appeal. We have a complaints process. The individual can go to the complaints ombudsman. There is also the opportunity for judicial review, and they can write to their local MSP. There are a number of avenues for them to make an appeal. There are mechanisms in place that allow people to challenge the decisions that we take.

For clarification, you talked about setting up the operating procedure. In the interim period, what would happen to a newly remanded or convicted transgender prisoner? Would they go to an establishment for prisoners of their birth gender?

Yes.

Good morning. The key question is: how do we move forward? However, I want to understand how we got to this point. That is important, because a lot of things went wrong.

I will start with the cabinet secretary. I have not raised this directly with you, but I have raised it with other ministers and with the SPS. I expressed my concern when the Katie Dolatowski case was live. Why did ministers not raise the issue with the SPS before now, given that, as we heard in answer to Russell Findlay, your officials phoned the SPS? I ask that question because I am sure that, as cabinet secretary, you are aware of the profile of women offenders. One statistic from the McMillan research is that 85 per cent of women offenders have reported adult sexual physical abuse. I am sure that you know all this.

Therefore, my first question is: why did ministers not raise the issue before now? We are talking about a policy that has been in place since 2014. For the sake of completion, I will quote Rhona Hotchkiss, who was vocal well before the decisions in question. She said:

“it is always an issue to have trans women in with female prisoners and ... the presence of male-bodied prisoners among vulnerable women causes them distress and consternation.”

Given what you have said, do you think that it is time to change the balance of the policy? Were you aware that women’s groups were not consulted on the design of the policy?

The policy was designed in 2014. It remained relatively uncontentious for most of the period up until now. As I have said, I have confidence in the system that is there, notwithstanding the changes that I announced. I think that those changes in policy were pretty consistent with what the Prison Service does already. Therefore, I do have confidence—

But, with respect, that is not what I am asking. I know that you have confidence in the system. I am asking you directly whether you were aware that, when the policy was developed, women’s groups were not consulted. Did anyone tell you that?

I was not in post at that time. Teresa Medhurst will know about that far better than I do. However, you mentioned Rhona Hotchkiss’s concerns. I have spoken to other governors, not least the current chief executive of the Scottish Prison Service, who do not share her views. The people I have spoken to have lengthy experience of dealing with transgender prisoners and I tend to rely on their advice, because I think that they are the experts in that area.

09:30  

Sorry—I am not trying to be difficult; I am just trying to get to the bottom of this. As the Cabinet Secretary for Justice and Veterans, does it concern you that we have had a policy in place since 2014 that women’s groups have not been consulted on, even though they have raised concerns about it? Going forward, would you want to make sure that that changes?

I know about and can speak to current policy, because I am involved in the process as a cabinet secretary. In the review that is currently taking place, people are being consulted with, including female prisoners, which is important, as well as other interest groups. I cannot speak to what you are asking about, as I was not in post as Cabinet Secretary for Justice and Veterans in 2014. I think that it is important—

So, you were not aware that women’s groups were not consulted? I am not trying to give you a trick question.

I have heard that said before, and I think that it has been said in the chamber. I was aware of that. Because I am now in post, I am concerned with making sure that the current review of the policy takes into account the most important groups. In relation to that, the views of women prisoners are of particular importance. The Prison Service is undertaking the review and the consultations. You may want to hear from the person who is in charge of that review.

I do, in a minute. I am really just trying to get some clarity. That is all that I am trying to do.

In balancing the rights of everyone—and I note what you have said about the importance of balancing the rights of trans people—would you agree that Rhona Hotchkiss is not talking about the possibility that women might be at risk, but that she is saying that the privacy and dignity of women in prisons are also important?

I have heard other governors say otherwise and that they think that the privacy and dignity of women in prison can be accommodated within the way that they deal with transgender prisoners. I have confidence in that view, but, of course, it will be subject to the current review.

Thank you.

I will ask Teresa Medhurst a similar question, as I am trying to get to the bottom of this. I know that you were not governor for the whole time period. You have probably heard the interview with a former prisoner who said:

“My whole time in prison”

I was

“on constant high alert, my nerves were frazzled with fear. These incredibly violent men were walking around the communal shower area naked and sometimes”—

I apologise for the language—

“clearly aroused. Myself and other women were in cubicles with only a curtain to protect us. I was shaking with fear.”

I raised that issue with the deputy governor. I have to confess that I was shocked at the defence of the policy at the time. If there is going to be change, I would welcome it.

What is your view on her comments? I was told, first, that what she said was not true. Secondly, I was told that women are not at any risk and that there are separate showering arrangements. However, that does not seem to bear out the testimony of women prisoners.

In all our prisons across the estate, we have a range of different types of high-risk individuals who are in our custody. In any prison on any day, there are always protocols for how people are dressed when they come out of their cellular areas. That must meet an acceptable standard, because we have mixed gender staff groups across all our prisons. It is not appropriate for people to be wandering about in a communal area either partially or fully unclothed, which is probably why there was some surprise at the claims that were made. I am not saying that the person who was interviewed did not experience that, but I would also be surprised at that. Our communal areas also have cameras and we have access to closed-circuit television.

I have to say that it would shock me if someone was in that state of fear for that length of time, and I would be very concerned about it, but I would also be surprised if staff were not aware of it, because staff are incredibly experienced in the relationships that individuals—particularly women—have. They are always looking out for vulnerabilities, changes in behaviour and changes in relationships. There is a very well-established protocol that ensures that, where issues arise that require to be dealt with or challenged, staff will do so, and they will do so in a firm manner.

You seem to be questioning what was said. Again, I point to the statement that was made by Rhona Hotchkiss, the former governor of Cornton Vale. She said:

“... it is always an issue to have trans women in with female prisoners.”

That means that it affects not only one prisoner. Do you accept what Rhona Hotchkiss said?

I have governed the same establishments that Rhona has, and in my experience, there are very clear protocols and restrictions placed around individuals, particularly when an individual is in custody for the first time. There is also clear testing around how relationships are developed with that person, and trans individuals—

So, what was said is not true. The problem I have is that, every time I ask a question, I get management speak in response, and it is the same with the deputy governor. I am trying to get some clarity. Rhona Hotchkiss has been the governor of Cornton Vale, so do you think her assessment is fair?

If that is Rhona's assessment, and she has evidence to back it up, then, of course, I want to hear it and I welcome her input.

Is it not the experience that you had?

It was not the experience that I had. We had a trans woman and the women were incredibly supportive of her, curious about her and incredibly understanding, so the experience that I had is different.

I will move on to questions from Collette Stevenson, and then I will bring in Katy Clark.

Thanks, and good morning. I want to look at the lessons learned review, which is currently under way. Have you considered looking at other countries that are outwith the UK for examples of good practice in the treatment of transgender prisoners and other vulnerable prisoners in prison estates?

There has been extensive consideration of other jurisdictions as part of the current review. We have considered His Majesty’s Prison and Probation Service, which is closest to us, and also systems in Canada and New Zealand. We have also considered the research, policy and evidence that are available from across the globe, so all of that informs good practice. However, it is important to note that there are cultural differences between us and other jurisdictions, so it is important that we pay attention to the views and perspectives of interest groups—as Rona Mackay and Pauline McNeill mentioned—and the public. There was a public consultation as part of that review, and we have pulled all of that evidence together with the voices of our staff and those in our care—both non-transgender and transgender individuals.

Does the policy in its current format meet with the standards of the Optional Protocol to the Convention Against Torture?

I am afraid that I do not have the answer to that question.

The prisons inspectorate is part of the national preventive mechanism, which is responsible for overseeing the implementation of OPCAT, and it does inspections and monitoring of our prisons in line with OPCAT.

Is the inspectorate fairly comfortable with the policy in its current format?

No issue has been raised with me, certainly. I do not know whether anything has been raised with Teresa Medhurst.

The inspectorate obviously has access to all our policies. It visits all our prisons, and can do so at any time. A number of our prisons have transgender individuals within their care, and nothing has been raised with us around the current policy or practice.

Would the inspectorate raise issues, if there are any, on a regular basis with each prison?

That would come either through the independent prison monitors who are allocated to each prison, if they considered that there was any practice or issue that required to be raised, or through the inspection reports, which are published a few months after each inspection.

I will just quickly ask one more question. Sorry, convener, but I will finish on this.

Will you consult on the review with the inspectorate and each of the prison monitors and seek feedback from them?

The review has sought the views of a wide range of not only public sector organisations but third sector organisations and interest groups, which would include the inspectorate.

Thank you.

I want to go back to the lessons learned review and what actually happened on 24 and 25 January. The facts as we understand it are that, when the offences took place and when the individual was initially charged, they were a man and had not self-defined as a woman at that point, but thereafter they self-defined as a woman. You say that the outcome of the review is that the 2014 policy was adhered to. Obviously, we have not seen the full lessons learned review; we have just seen a summary, but the summary is that the policy was adhered to. However, I think that you are also saying that the multidisciplinary assessment had not taken place as of 24 or 25 January.

That is our understanding of the position. What we do not understand is why the individual was not transferred to Barlinnie and held in segregation there pending the multidisciplinary risk assessment.

The cabinet secretary, in his introduction, referred to our inability to discuss individual cases, and that would apply in this case. What I would say is that with any—

Can I interject? You are an experienced witness, and you have appeared in front of the committee on many occasions. We need answers. I am not asking you to talk about individuals. You say that the policy was adhered to.

Yes.

Given the facts as we understand them, which I think we all agree on, and given the situation on 24 and 25 January—we do not need to talk about the individual—why was that person not transferred into the male estate and held in segregation there pending the multidisciplinary risk assessment?

That is what I am trying to explain, Ms Clark.

When a decision is made or an outcome reached at court, the individual is then passed on to GEOAmey. As our contractor, it will try to ensure that, where possible, all relevant information is provided to us as a Prison Service, and the Prison Service is then required to make a judgment based on that information.

If you look at the policy, you will see that it says that, where an individual identifies in a social gender, consideration is given to where that individual is to be located. Our processes, and the way that we manage individuals mean that we have to assess and determine where best to undertake those assessments on each occasion. However, the safest way to undertake those assessments is through an operational decision, and an operational decision was taken on the placement of that individual.

Are you telling us that the policy from 2014 has been that an operational decision is taken on the basis of how the individual defines themselves at that point, irrespective of whether a multidisciplinary risk assessment has taken place?

09:45  

As can be seen through all the information that we provide, it is about a range of factors. That individual identifies in whichever social gender they choose to do so—that is just one factor but, as the policy states, it is a factor that needs to be considered. We also have to look at safety. We have a range of measures that we can put in place, which include special security measures—protecting people by putting limitations around what they can and cannot do. The other way that we can do that is by placing them in segregation and identifying the most suitable segregation point for that individual.

We take such decisions on a daily basis, and they will always have to be taken in advance of a multidisciplinary case conference because, at the time of admission, there is no time for a case conference to take place. For that conference, we require medical input and we might require social work representatives. If the individual is transgender and had been working, for example, with medical experts such as the Sandyford clinic, we might ask for representation from it. That all takes time so, at the point of admission, we will not have such a conference and we always have extremely limited information, so people have to make a best-case decision based on the information that they have.

What factors would be taken into account? We know that, on this occasion, it was not somebody who had lived as a woman for many years because, at the time of the offence, they had not self-defined. At some point during the legal process, did their status change? Do you know that? Was that fact available at the time and were the offence and the conviction taken into account in the operational decision that was taken?

I am not asking you to focus on the individual; I am asking you to focus on how those issues are dealt with and what factors would be taken into account, given that you would not have all the facts, as you would not have had the multidisciplinary assessment.

Any information that we have from the court—that information would be limited—and any information that we have on the individual would be taken into account. That would all be factored in to the decision, but it is an almost immediate decision. People weigh up the different elements—it is not an algorithmic approach, but they weigh up every element of information that they have and reach what they consider to be the best decision given the circumstances.

I am not asking you to refer to individuals, but at what level within the service would that decision be taken? Who would take that decision?

Sometimes, decisions are taken by individual establishments and senior leaders in those establishments. On occasion, they might ask for support from headquarters and from more senior people, and that might include input from others who have expertise.

I am not asking you to identify individuals, but at what level was the decision taken in the case that we are discussing?

It was a decision that was taken in conjunction with headquarters.

The 2014 policy has been under review for a number of years and you have gone through a very quick lessons learned review in relation to this particular incident. Have recommendations been identified in the lessons learned review that were not identified in all the review work that has been happening over the past few years in relation to the 2014 policy?

The review of the 2014 policy was committed to in 2019 and some early scoping work was undertaken at that time, but then the pandemic hit, and it was only in 2021 that we were able to create the capacity to commence the review.

Concerns have been raised about how long the review has taken, but there have been—

We do not have a lot of time, so maybe you could answer the question, which is about whether recommendations were identified in the lessons learned review that were not recognised in that very long process.

The formulation of the recommendations from the review is still under way, and the work that we have undertaken as part of it will be used to inform that process.

Convener, given that witnesses have said that they are not aware of concerns that have been raised before, can I briefly ask whether they are aware of some concerns that are currently being raised?

You can do so if it is your final question, because other members are waiting to come in.

I will be very brief. There are three issues that I want to put to you about which concerns are being raised. First, in relation to individuals currently in the estate, we understand that individuals will no longer be moved. Where fresh charges are brought, if those charges are of a violent or sexual nature and regardless of whether the charges relate to crimes against boys, men, girls or women, what approach will be taken?

Concerns have been raised with us, as politicians, about searches. For example, there are concerns about women prison officers being asked to conduct searches on individuals with male genitalia and, indeed, male prison officers being asked to conduct searches on trans men with female genitalia. Concerns are also being raised about the safety of trans men on the estate and the duty of care that you have when trans men are being kept on the male estate. Are you aware of those concerns and will you either respond today or get back to us after the meeting on those issues, given that you are saying that you are not aware of them and given the fact that it is people within the system who are raising those concerns with us? Are you aware of those concerns?

I am aware of some of those concerns, but I am more than happy for us to respond to some of those, Ms Clark, because I am not aware of all of them.

Okay—thank you.

Good morning. I will open my questioning with some consensus on what the cabinet secretary said about the fact that we need to be careful not to stigmatise an entire community for the actions of a small group within that community. However, we are perfectly entitled, and it is entirely appropriate, to ask specific questions about what has happened, given the very understandable public interest in the matter.

I might be a bit more simple and direct in my line of questioning in the hope that we get through this more easily. I ask quite straightforwardly: who made the decision to house Isla Bryson in the female estate?

As I said, that decision was taken by headquarters.

Who is headquarters? Is it a person or a chain of command?

I am not at liberty to say that. Normally, there are local and national processes and people seek advice through their channels into headquarters, and that is what was done on that occasion.

Somebody must have signed off the decision.

Ultimately, the position is that I am accountable for all decisions within the organisation, so you can say that it was me.

Okay, so the buck rests at the top—I understand that.

Yes, absolutely.

Therefore, given the current policy and any future changes, as that individual is no longer in that location, were you in effect overruled by Scottish ministers on a decision that you were ultimately in charge of?

No, absolutely not.

At what point in the decision-making process did it ever seem appropriate to house a rapist in the women’s estate, and has that ever happened before?

I will come to the second point first. To be honest, I am not aware of a similar case, but I would need to check that and come back to you. Could you reiterate your first point, please?

It is a wider point. As we look to move forward and offer some clarity to the public on the issue, at what point—at any stage of proceedings—was it ever felt or deemed to be appropriate to house someone who had been convicted of the crime of rape in the women’s prison estate? Why, in anyone’s logical thinking, would that ever be appropriate?

I understand the public concerns and I understand why you have raised that question. In my responses to Ms Clark, I tried to set out that a really complex set of issues require to be considered in relation to the risks that someone might pose, including to themselves, and in relation to the needs and rights of those individuals and others. It is not a simple process. At the point when someone is making a decision on the location of an individual, they will have extremely limited information and will make the best decision at the time, given the circumstances and our policy position.

That in itself is a problem. What do you mean by “limited information”? Surely, you should have access to fulsome information about that individual. That person has gone through quite a lengthy court process and there was undoubtedly an element of public interest in the case. At what point does the nature of the crime for which someone has been convicted become a primary factor in decision making? Clearly, it sounds as though it was not in this case.

I will respond in general terms. There are circumstances in which people are charged with offences, convicted of offences and bailed for offences, and who, at the point that they come to court, come to us with little or no information. It is not the case that a lot of information is available to the SPS. That has been recognised in the lessons learned review, and that is why we are undertaking a review and speaking to our colleagues in Police Scotland, the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service. They might have more information about someone, but that does not come through to us at the time. There is something around the sharing of information—that is why we are developing a memorandum of understanding—and the way in which that is communicated could be improved on. That is why we are in discussions with partners.

The current position is that no transgender offender who has been convicted of a crime of violence or sexual violence against women or girls will be placed in a female prison. I presume that those who commit other types of violence and domestic abuse are not currently and will never be held in the female estate. Is that something on which you can give assurances, or is that a temporary measure?

On the intent that the cabinet secretary announced on 29 January, we have actually taken a more precautionary measure at the moment—

At his directive, though.

Yes.

Under ministerial directive.

Yes, under ministerial directive. That measure is that no one who is newly convicted of violence against women in the broadest sense will be admitted to a female prison. Therefore, the measure that I have taken until we can develop a standard operating procedure is that anyone who comes into custody from now on will be allocated to an establishment that is commensurate with their birth gender, as opposed to their social gender.

I understand that, but I do not think that it really answers the question. I will put the question directly to the cabinet secretary. Is that a temporary measure, or will it become a permanent feature of how the process works?

I think that you have heard that there is a lessons learned review on the particular case that has been mentioned and that that will feed into a larger review. The larger review will determine how we go forward.

I restate the fact that the policy that the SPS carried out was, first and foremost, to ensure the safety of all prisoners. The SPS has a very good track record of making sure that that is the case. Therefore, if somebody was admitted to a female prison—it is worth bearing in mind that we have both women and men in many of our prisons—they were held in segregation, to minimise the risk to other prisoners and staff. On top of that, we have provided the additional direction, which you have just mentioned, to make sure that people go to part of the male estate in the first instance.

I should say that there is an exception to that, which we stipulated to the Prison Service, which was that in any case where the SPS felt that it was imperative that that should not happen, it should get ministerial approval. That is the same as in other jurisdictions, such as England and Wales. That is the current situation. The overarching review will take things forward.

10:00  

I understand. Ms Medhurst, are there currently any trans women prisoners in the women’s estate who have been convicted of crimes of violence against women?

Excuse me, I am struggling at the moment.

My answer would be that there are not. I am looking at Neil Rennick for some help on that. Obviously, we are going through the reviews at the moment.

There are only five trans women in the women’s estate in total, so you must know.

Then yes, that is the case.

Our understanding is that there are currently no trans women in the female estate who have live convictions for violence against women.

So, the answer is that there are none. That is reassuring.

Finally, what effect does the possession of a gender recognition certificate have on your decision making? There is still a bit of ambiguity as to what the decision-making process looks and feels like. I know that you have spoken about it, I understand the rationale and I know that you have been doing it for a very long time. The actions of prison staff in handling such sensitive issues are to be commended. That is all a matter of public record. However, it is still unclear how you go about taking such decisions. I am intrigued by the effect that a legal document such as a GRC would have on your decision making, compared to the effect of someone making a different kind of declaration that does not have that legal recognition—that might include those who have gone through some form of transition.

The position with regards to a gender recognition certificate is that it would be considered as a factor—an important one—during the multidisciplinary case conference and would be taken into account when a decision is reached both on the management plan for the individual as well as the location. However, it would not necessarily override other risk factors that were more compelling.

Thank you.

Rona Mackay has a supplementary question.

I am conscious of time. Would newly remanded prisoners who go to the establishment of their birth gender be segregated as a matter of course or could they be segregated if they requested it? I am thinking about their human rights in a situation where they have not been convicted of anything.

That is a concern because, obviously, we do not want to disproportionately segregate people who are trans, whether they are trans women or trans men. Developing a standard operating procedure, looking at the memorandum of understanding with other justice partners to gather as much information as we can, will help to inform that decision. Equally, we need to take on board the wishes of the individual and assess how comfortable they feel in their environment and whether we need to provide additional protections. That also relates to the location. For example, if someone was going into Edinburgh prison, which is a large establishment with various parts of the estate held for remand prisoners, sex offenders, short-term prisoners and so on, a decision might be taken not to put them in with other remand prisoners if it were felt that they might be safer somewhere else.

Each establishment will need to operationalise the standard operating procedure and look at individual cases on their own merits.

Would the person’s wishes be taken into account?

Absolutely.

Good morning. I was going to ask about the effect of a GRC, but you have already covered that in response to Jamie Greene.

You will obviously be aware that the Gender Recognition Reform (Scotland) Bill passed through Parliament weeks before this situation came to light. I know that the bill has not become law because of the current situation with the UK Government. Nevertheless, did the process and passage of the bill have any impact on the decisions around the situation that has led us here today?

My understanding, from the work that we have been conducting both in relation to the review and following the progress of the bill, is that the position on the gender recognition certificate would not substantially change. There would be no effect on us, and we could therefore still fulfil our obligations in the way that we have been doing, looking at each individual case and assessing that as one element in relation to balancing risk, needs and rights.

On whether there are any further considerations that need to be taken into account given the position that the cabinet secretary has stipulated regarding those individuals who have convictions for violence against women, we still need to work that through.

We are just about coming up to time, but, in recognition of the importance of and interest in this issue, I am happy to bring in a couple of final questions. I will start with Russell Findlay, who I know has a question, and then I will bring in Pauline McNeill.

I would like to ask about the SPS review, which is a work in progress. The report was initially due to be published last summer, I think. This is a two-pronged question. Would there be any value in, or are you considering, publishing the report as a draft document initially, in order to give various bodies the chance to feed back and respond to it, or will it be published as a final work?

Secondly, given that the report has already been delayed, will it be delayed further until the new First Minister is in post? Will that have any bearing on it?

I had certainly not anticipated that there would be a delay because of a change in First Minister. There is likely to be a further delay because of the additional work that we are now having to apply because of the lessons learned and the additional measures that we are now putting in place.

With regard to the process of publication, there have been no final decisions, given the nature of the public interest. Although we have tried as far as possible to undertake an extensive consultation, I understand that there is a high degree of interest in our new policy, so we will still need to work through what that looks like and how best to present it. That will include understanding how the cabinet secretary wants the process to be applied.

What is your latest estimate of when the report might be published?

Well, to be honest, it is really difficult to give you anything definitive. I would like it to be done as soon as is practicable, but even the standing operating procedure that we have been working on will not be developed as quickly as I would have hoped, because there are other partners involved in processing that.

Is it likely to be published this year?

I would be very disappointed, Mr Findlay, if it was not definitely published this year—and sooner rather than later.

Finally, I bring in Pauline McNeill.

This is—I hope—a straightforward question. It follows on from Katy Clark’s question about who made the decision and all that. I am not trying to get you to say who made it, but I did not understand something.

There is a segregated unit in Barlinnie for sex offenders; I have actually been to the cells for individual solitary confinement. Why did the decision maker not just hold the prisoner in the segregated unit in the estate for assessment? That is a really important question, to answer now or to come back to the committee on at some point.

Is the problem that the 2014 policy is a self-ID policy, so you did not have a choice? It is really important to get to the bottom of that. If we want to move on from this, and if there are genuine lessons to be learned, we need to know why.

This seems like an obvious and sensible question that any member of the public would ask. Why did the prisoner need to go to Cornton Vale to be assessed and segregated? We have heard that there was no risk to women, but they could have been segregated somewhere else. I have a clear question. Why did the decision maker not hold Isla Bryson in another part of the male estate until a decision was made—albeit that I might not have liked the decision?

The decision was made based on the circumstances and the information that was known. Segregation was clearly a factor in the decision, and the segregation unit that was used was the segregation unit at Cornton Vale. The decision was made based on all the information that was known at the time, and—

When you say “information”, do you mean that they had self-identified? Can we be clear about this? Please do not give me any more—

The policy is very clear—

Can you be clear with me?

—about identification of social gender.

That was the reason.

Although there is not an automatic right to be in the female estate, that is one of the factors that is considered. On the basis of the information—

I am sorry, but that does not make any sense. If that was one factor, would it be fair to say that the decision maker could, under the policy, have said, “Okay. I have looked at that. This person has self-identified as a woman. I’m going to segregate the person in Barlinnie until we decide where the person is going to go”? Could that have been a decision or not?

That could have been a decision.

The decision maker chose not to do that.

That is correct.

Do you know why?

As with all operational decisions, the decision maker, having considered the information that they have and the information that they do not have, makes the best decision to protect—

They checked that with headquarters.

—both other people and the individual. They make the best decision that they can make based on the information that they have, and with knowledge and understanding of the information that they do not have.

I know what you are saying but, given that headquarters signed off the decision, what would have been the risk in segregating the prisoner elsewhere? Surely, there would have been no risk. I do not know whether there is a segregation unit in Greenock, but I know that there is one in Barlinnie. What would have been the risk in doing that?

It is very difficult, from an operational perspective, to second guess a decision that somebody has taken. That—

I am sorry, but I am not accepting that. You have already told the committee that the decision was signed off by headquarters, so nobody second guessed. Which is it? In evidence to the committee, you said that the decision was signed off by headquarters. Am I right?

You make a decision—

So how was it second guessed?

What I am saying is that, sitting here today, several weeks down the line, we clearly know and understand more about the individual and the case.

You are talking about hindsight.

Yes. That is what I meant.

Okay. I am sorry. I was confused by the phrase “second guess”. You are talking about hindsight, with us knowing what we all know now.

Thank you for that.

On that note, I bring the session to a close. I thank all our witnesses for attending the meeting.

There will be a short suspension to allow for a changeover of officials.

10:13 Meeting suspended.  

10:17 On resuming—