Case No: C0/3192/2014
Neutral Citation Number: [2015] EWHC 1550 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice Rolls Building,
Fetter Lane,
 London, EC4A 1NL

Date: 04/06/2015

Before :

MR JUSTICE WALKER
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Between :

	The Queen on the application of H	Claimant	
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	Secretary of State for Justice	Defendant	

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Mr Jude Bunting (instructed by Swain & Co LLP) for the Claimant
Mr David Lowe (instructed by the Treasury Solicitor) for the Defendant

Hearing date: 28 April 2015
Written submissions were completed on 3 May 2015.
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Judgment
Mr Justice Walker: 
Table of Contents  

A. Introduction	3	
B. Allegations and answers	4	
B1. The public law duty and its three aspects	4	
B2. The article 5 duty	4	
B3. Duty under article 14 not to discriminate	5	
B4. Duty under Equality Act 2010 not to discriminate	5	
B5. Duty under s 149 of Equality Act 2010	5	
B6. The defendant’s answers	6	
C. Relevant history	7	
C1. Prior to the index offences	7	
C2. The index offences: arrest, detention, sentence & appeal	7	
C3. HMYOI Aylesbury: 7 January 2010 to 5 October 2011	8	
C4. HMP Maidstone: 5 October 2011 to 8 July 2013	9	
C4.1 The reason for the transfer to HMP Maidstone	9	
C4.2 Risk reduction work	9	
C4.3 Arrangements to assess suitability for the SOTP	10	
C4.4 The November 2012 Parole Board panel review	10	
C4.5 Further work by Ms Lewis & the January 2013 PPCS letter	11	
C4.6 Completion of the Lewis assessment in February 2013	12	
C4.7 Attempts to implement the Lewis assessment up to July 2013	20	
C5. HMP Lewes: 8 July 2013 to 7 January 2014	20	
C6. HMP Elmley: 7 January 2014 to 25 March 2015	21	
C6.1 Move to HMP Elmley and reply from HMP Grendon	21	
C6.3 The pre-action protocol letter of 17 January 2014	21	
C6.3 KSPS involvement; CBT begins: February to June 2014	22	
C6.4 Millfields interview & issue of claim form: 10 July 2014	23	
C6.5 Mr Russell, the claimant, the OS & OM meet: 13 August 2014	23	
C6.6 The remainder of 2014	24	
C6.7 The period from 1 January to 25 March 2015	25	
C7. HMP Whatton: 25 March 2015 onwards	28	
D. Alleged breaches	28	
D1. Alleged breaches of the public law duty	28	
D1.1 Aspect 1 of the public duty: adequate systems	28	
D1.2 Aspect 2 of the public duty: unreasonableness	29	
D1.3 Aspect 3 of the public duty: compliance with policy	31	
D2. Alleged breach of the article 5 duty	31	
D3. Alleged breach of duty under article 14 not to discriminate	32	
D4. Alleged breach of statutory duty not to discriminate	33	
D5. Alleged breach of duty under s 149 of Equality Act 2010	33	
E. Conclusion	34	

A. Introduction
1.	The claimant is a prisoner held in closed conditions at HMP Elmley. I shall use female pronouns when referring to the claimant because, although the claimant was born and remains physically a man, during the course of imprisonment the claimant expressed a wish to change gender from male to female. It was at around this time that the claimant adopted the female name by which she is currently known. Since that time HM Prison Service has treated the claimant as transgender. The claimant is a convicted sex offender and says that she herself has been the victim of sex offences. The Sexual Offences (Amendment) Act 1992 (“the 1992 Act”) applies in both these respects. No publication may include any matter which both relates to the victim of the claimant’s offences and is likely to lead members of the public to identify that victim. Similarly, no publication may include any matter which both relates to the claimant as a victim of any sex offence and is likely to lead members of the public to identify the claimant as that victim. The present judgment uses the initials JS for the victim of the claimant’s offending, and H for the claimant, so as to comply with the 1992 Act. 
2.	The claimant was born on 20 August 1990. She is in prison because on 8 October 2009, when she was 20 years of age and known by her male birth name, she was sentenced to detention for public protection. That sentence was imposed following her pleas of guilty to sexual offences (“the index offences”) committed by her as an 18 year old male. At the time of the initial index offences JS was a 12 year old boy. There were two offences of rape of a child under the age of 13, the physical acts in question being constituted by the claimant’s penis penetrating the mouth of the victim. There were also two offences of causing or inciting a child under the age of 13 to engage in sexual activity, the physical act in question being constituted by the victim’s penis penetrating the mouth of the claimant. In addition, after the victim had turned 13, there were three offences of sexual activity with a child, and three further offences of causing or inciting a child to engage in sexual activity. Finally, there was an offence of possession of indecent photographs of a child. The claimant said that these offences were representative of conduct which occurred as part of a consensual sexual relationship. 
3.	The minimum term applicable as part of the claimant’s sentence was reduced by the Court of Appeal. As so reduced, it expired on 7 March 2013. From that time onwards it was open to the Parole Board, if satisfied that there had been a sufficient reduction of risk to the public, to recommend the claimant’s release. Prior to that date it would have been open to the Parole Board to recommend that the claimant be moved to open conditions. The Parole Board, however, has noted that the claimant’s offending suggests a sexual preference for young boys. To date its conclusion has been that the risk of committing similar offences is high and that this will remain the case until the claimant has completed work specifically linked to sexual offending. 
4.	In these proceedings, begun by a claim form issued on 10 July 2014, the claimant says that the defendant is at fault in failing to provide the opportunity to do work specifically linked to sexual offending. In that regard, it is alleged by the claimant that the defendant is in breach of five duties owed by the defendant to the claimant. The five duties are explained in a document accompanying the claim form entitled “Background and Grounds of Claim”. They are discussed in broad outline in section B below. In section C below I give an account of the relevant factual history. In section D below I analyse the ways in which the claimant says that these duties were broken. My conclusions are summarised in section E below. 
5.	Written evidence on behalf of the claimant has been provided in two witness statements by Mr Dean Kingham of Swain and Co, the claimant’s solicitors. On behalf of the defendant witness statements have been made by Mr Ian Russell, a chartered psychologist employed in the defendant’s Kent and Sussex regional forensic psychology service (“KSPS”). A further witness statement has been made by Mr Martin Fisher, whose main employment is with the Public Sector Prisons Directorate of the National Offender Management Service, where he is the Regional Lead Psychologist for the South Central Region. 
6.	I have had considerable assistance from detailed skeleton arguments and oral and written submissions of an exceptionally high quality by Mr Jude Bunting for the claimant and by Mr David Lowe for the defendant. The material lodged by the parties includes evidence of events after the claim form was lodged and indeed after the grant of permission to apply for judicial review. Both sides agree that I should take account of this evidence in reaching my decision.
B. Allegations and answers
B1. The public law duty and its three aspects
7.	The first duty relied upon by the claimant is one which was, in broad terms, conceded by the defendant in R (Wells) v Secretary of State for Justice [2010] 1 AC 553: it is implicit in the statutory scheme for imprisonment (and, in the case of those under the age of 21, detention) for public protection that the Secretary of State would make provision allowing relevant prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. The claimant relies upon three aspects of this duty, each of which is said to have been broken:
(1)	The duty is said to have required the defendant to put in place adequate systems to enable transgender prisoners who have committed sexual offences to complete accredited sex offender treatment programmes; 
(2)	The duty is said to entail that the defendant must not unreasonably fail to provide meaningful risk reduction work to the claimant;
(3)	The duty is said to require that the defendant must act in accordance with relevant policy guidance. 
B2. The article 5 duty
8.	The second duty relied upon arises because the defendant is obliged under section 6 of the Human Rights Act 1998 to act in a way which is not incompatible with Article 5 of the European Convention on Human Rights. The Supreme Court in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66, [2015] 2 WLR 76 held that it is implicit in the scheme of Article 5 that the state is under a duty to provide an opportunity reasonable in all the circumstances for relevant prisoners to rehabilitate themselves and to demonstrate that they no longer present an unacceptable danger to the public: see paragraph 36. The claimant asserts that there has been a failure to provide such an opportunity. It is common ground that the duty that arises in this regard is not subject to limitations which may affect the first duty. Paragraph 41 of the Supreme Court’s judgment explains that the right giving rise to the duty implicit in article 5 is an ancillary right in favour of each individual prisoner, and its satisfaction or otherwise depends on the particular circumstances of the individual case. 
B3. Duty under article 14 not to discriminate
9.	The third duty also arises because the defendant may not act incompatibly with an article of the European Convention on Human Rights, in this case article 14. Under article 14 the enjoyment of the rights and freedoms set forth in the convention shall be secured without discrimination on grounds of status. It is accepted that being transgender is a status for the purposes of Article 14 and that the claimant is transgender. The alleged breach of this duty arises because the claimant asserts: 
(1)	that the claimant has been denied access to offending behaviour work on the basis of her transgender status; and
(2)	this discriminatory treatment is neither justified nor proportionate. 
B4. Duty under Equality Act 2010 not to discriminate
10.	The fourth duty arises under sections 19 and 29 of the Equality Act 2010. Section 29 makes it unlawful for a public authority, in the exercise of its public function, to do anything which constitutes discrimination. Under section 19, which is concerned with what is known as “indirect discrimination”, there will be discrimination where the defendant applies to a prisoner a provision, criterion or practice which is discriminatory in relation to a relevant “protected characteristic”. Gender reassignment is a protected characteristic under section 7 of the Act. The claimant says that the defendant’s provisions, criteria and practices have involved indirect discrimination, as defined in section 19. In that regard, the test of discrimination for the purposes of section 19 requires that four elements are satisfied. The claimant says that they are satisfied. First, the defendant’s provisions, criteria and practices are applied to those who are not transgender. Second, they put those who are transgender at a particular disadvantage when compared with those who are not transgender. Third, they put the claimant at that disadvantage. Fourth, the claimant says that the defendant cannot show that they are a proportionate means of achieving a legitimate aim. 
B5. Duty under s 149 of Equality Act 2010
11.	The fifth duty relied upon arises under section 149 of the Equality Act 2010. Under section 149(1) a public authority must, in the exercise of its functions, have due regard to three things. Of these, two are relevant for present purposes. First, under section 149(1)(a), due regard must be had to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the 2010 Act. Second, due regard must be had to the need to advance equality of opportunity between persons who share a relevant protected characteristic and person who do not share it. Section 149(3) adds in section 149(3)(a) that having due regard to the need to advance equality of opportunity involves having due regard in particular to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic, and sub-section (3)(b)  adds that it involves having due regard to the need to take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it. 
B6. The defendant’s answers
12.	The defendant says, in broad terms, that the individual circumstances of the claimant’s case provide an answer to the allegations of breach of duty. In particular, as set out in the defendant’s skeleton argument, five features are relied upon: 
(1)	The claimant has undertaken a number of both accredited and unaccredited interventions which have provided her with an opportunity for rehabilitation. 
(2)	The claimant’s case is particularly complex due in particular to her issues with carrying out group work with men, her relationship issues, and her personality disorders. The scale of this complexity has become increasingly apparent over time during the process of seeking to find suitable treatment options for the claimant. 
(3)	The defendant has taken active steps to assess the claimant for suitability for further interventions, though due to the complexity of her case (for reasons other than her being transgender) this has proved difficult at times.
(4)	The defendant considers that, given the complexity of the claimant’s case, the most appropriate pathway is now for further detailed assessment, with a particular focus on her personality disorders.
(5)	As in every case of this nature, resource constraints have the consequence that assessment and treatment cannot be provided on demand, and inevitably there will be some periods of delay in progressing prisoners in their rehabilitation.
13.	The defendant adds that the claimant’s behaviour has in any event not been good enough for there to be a move to open conditions.
14.	As will be seen below, the claimant was assessed for participation in accredited sex offender courses, and a conclusion was reached that there was a need to do other work in the first instance. The defendant accepts that an accredited course might be an appropriate step for the claimant at some stage. It has been recognised in many cases that accredited courses are important in satisfying the Parole Board of safety for release. The defendant observes, however, that completion of accredited courses is not necessary in every case. 
C. Relevant history
C1. Prior to the index offences
15.	Aspects of the claimant’s history prior to the index offences have been described by the Parole Board:
At the time of the index offences you were under statutory supervision for the harassment of another young boy. You had formed a relationship with him and when the victim decided that the friendship had run its course you became hostile, made threats of suicide and sent threatening and disturbing texts and messages to both the young boy and his mother.
Your other convictions include an offence of ABH against your brother and acquisitive offending. Prior to your involvement with the criminal justice system, you had a history of disruptive behaviour at school and you were excluded following allegations that you behaved in a sexually inappropriate manner towards a fellow pupil.
16.	Prior to the index offences the claimant had also been convicted of public order offences and breaches of court orders. No previous offence or combination of offences had crossed the custody threshold. 
C2. The index offences: arrest, detention, sentence & appeal
17.	In March 2009 the claimant was arrested and remanded in custody in respect of the index offences. During this period a psychiatric report on the claimant was prepared by Doctor Ann Stanley, a consultant forensic psychologist. The report concluded, among other things, that the claimant presented with narcissistic personality disorder traits. 
18.	The sentencing hearing took place in the autumn of 2009. Pre-sentence reports spoke of the claimant as someone who had experienced emotional distress, violence and abandonment, and as a result sought to form meshed relationships where the claimant was omnipotent. In that regard the claimant would violate boundaries on many subtle levels and presented a great psychological danger to children. The claimant was described as appearing to enter a state of complete fantasy when discussing the offences, and as having sought to blame the victim. In relation to the test of dangerousness, it was said that the claimant was attracted to young boys and pursued them tenaciously. The author of the pre-sentence report concluded that without intervention to address the claimant’s distorted thinking and manipulative behaviour, there was a very high risk of serious emotional and potential physical harm to children in the future. 
19.	When sentencing, the judge said that the claimant had groomed the victim by giving him gifts, taking him to McDonalds, and taking him to football matches. It was as a result of that grooming that the relationship became sexual around August 2008 when they started performing mutual oral sex on each other. The only mitigating feature of the offending was that there was no ejaculation. The judge considered that it was not in truth a consensual relationship, in that it was consensual only because of the prolonged grooming. The offences had had a considerable psychological impact on the victim and he would carry the scars of it for many years. 
20.	The judge concluded that the claimant met the statutory test of dangerousness, with the consequence that a sentence of detention for public protection had to be imposed. By statute the judge was required to decide what the appropriate determinate sentence would have been. Subject to credit for time spent on remand, the minimum term to be served prior to eligibility for parole would then be one half of the notional determinate sentence. The judge decided that the appropriate determinate sentence would have been a total of 12 years, and accordingly directed that the minimum term should be 6 years less time spent in custody on remand. 
21.	After sentence the claimant was transferred initially to HMP Parkhurst. On 7 January 2010 the claimant was transferred to HMYOI Aylesbury. 
22.	It is convenient to note here that in due course an appeal against sentence came before the Court of Appeal, Criminal Division. The appeal was allowed in one respect only. The Court of Appeal rejected a complaint about the judge’s decision that the statutory test of dangerousness was met, along with a further complaint that a determinate sentence of 12 years after trial would have been manifestly excessive. However it concluded that full credit should have been given for the claimant’s guilty pleas. The decision of the Court of Appeal was that after giving full credit the notional determinate sentence would have been 8 years imprisonment, and thus the minimum term should have been 4 years with a deduction for time spent in custody on remand. The Court of Appeal made an order giving effect to that decision. The result, as noted in section A above, was that the earliest date on which the claimant would become eligible for parole would be 7 March 2013. As also noted in section A above, however, the grant of parole would depend upon the Parole Board being satisfied that there had been a sufficient reduction of risk to the public.
C3. HMYOI Aylesbury: 7 January 2010 to 5 October 2011
23.	As noted in section C2 above, the claimant was transferred to HMYOI Aylesbury on 7 January 2010. A report provided to the Court of Appeal said that the claimant was being assessed for the Sexual Offender Therapeutic Programme. The report recorded that the claimant had stated the claimant’s own sexuality to be bisexual, that this had caused problems to the claimant while in custody, and that the claimant’s behaviour had deteriorated since arrival at Aylesbury. 
24.	While at HMYOI Aylesbury referrals were made so that the claimant could take part in risk reduction work. As explained in Mr Russell’s first witness statement (“Russell 1”), the claimant participated, during the period May to July 2010, in the Thinking Skills Programme (“TSP”), from September to December 2010 in the Prisoners Addressing Substance Related Offending (“P-ASRO”) drugs treatment programme, and from June to August 2011 in the Controlling Anger and Learning to Manage it programme (“CALM”).
25.	Mr Russell states at paragraph 14 of Russell 1: 
… the Claimant … also met with the forensic psychology service with respect to an assessment for the SOTP … when the Claimant was in a Young Offenders Institution, HMP Aylesbury. A full IQ assessment was conducted to determine whether she would be appropriate for mainstream programmes. The result indicated that due to her scores falling just below the cut for inclusion on the mainstream programme, the Core SOTP, it was noted that she would need to be considered for the modified version of the Core SOTP, the Becoming New Me Programme. As that programme was not run at HMP Aylesbury and due to her imminent transfer into the adult estate she was unable to be further assessed for the SOTP prior to moving into the adult estate. 
C4. HMP Maidstone: 5 October 2011 to 8 July 2013
C4.1 The reason for the transfer to HMP Maidstone
26.	After the claimant had identified herself as transgender, she was transferred to HMP Maidstone on 5 October 2011. This transfer occurred because HMP Maidstone, a male prison, was a specialist sex offender site that had experience of working with transgender offenders. At HMP Maidstone the claimant was placed on the Incentive and Earned Privileges (“IEP”) scheme.
C4.2 Risk reduction work
27.	Both before and after the transfer to HMP Maidstone there were regular assessments of the claimant under the defendant’s offender assessment system (“OASys”). Those assessments identified factors relevant to the claimant’s sexual offending. One such factor was the claimant’s attraction to boys. However, it was concluded that sexual attraction to boys was not a central factor motivating the claimant’s offending. Alcohol was assessed to be a relevant factor. Motivating factors for the claimant’s sexual offending were identified as an intense need for relationships and emotional instability. These assessments had led the Offender Manager Unit (“OMU”) to make the referrals which had led to the claimant, while at HMYOI Aylesbury, undertaking the programmes identified in section C3 above. Participation in such programmes had been considered to be relevant risk-reduction work for the claimant to undertake. 
28.	Further risk-reduction work, arranged during the course of the claimant’s first year at HMP Maidstone, was described in Russell 1: 
(1)	the claimant took part in a course provided by the defendant’s Counselling Assessment Referral Advice and Throughcare Services (“CARATS”), entitled the Rubicon Alcohol Awareness course, which was provided during the second half of April 2012; 
(2)	CARATS also provided the claimant with Integrated Drug Treatment (“IDT”) Relaxation work during the period from March to August 2012;
(3)	during the period April to July 2012 the claimant took part in sessions with a clinical psychologist, directed at addressing self harming behaviour, but also exploring relationship beliefs. 
C4.3 Arrangements to assess suitability for the SOTP
29.	In mid-2012 the Forensic Psychology Unit at HMP Maidstone put in place arrangements for the preparation of a report assessing the claimant’s suitability for the Core Sex Offender Treatment Programme (SOTP). The assigned report writer was Ms Melanie Lewis, the holder of a Masters degree in Forensic Psychology awarded by the University of Surrey. Ms Lewis wrote her report under the supervision of a Chartered Registered Forensic Psychologist, Ms Leah Sharpe. On 6 and 7 August 2012 Ms Lewis interviewed the claimant for a total of approximately six hours. On 24 August 2012 Ms Lewis, in connection with her work on the report, made contact with a clinical forensic psychologist, Mr Leigh Curtis. On 29 August 2012 an OASys report on the claimant was written by Ms Jo Frost. This was in due course considered by Ms Lewis. Ms Lewis additionally made contact with Healthcare at HMP Maidstone on 8 November 2012.
C4.4 The November 2012 Parole Board panel review
30.	A written review (“the November 2012 panel review”), completed by a panel of the Parole Board in November 2012, included the observations cited in section C1 above. It added:
You experienced emotional distress, violence and abandonment in your early life and the Pre-sentence report writer speculated that as a result of these traumas you seek to form enmeshed relationships where you are omnipotent.
You have yet to undertake specific work on your sexual offending which would help to identify risk factors. However, the index offences suggest a sexual preference for children and in order to satisfy your complex sexual and emotional needs you are prepared to violate normal boundaries. Other risk factors include violence, drugs and alcohol and possible personality disorder.
31.	Section 5 of the November 2012 panel review was headed “Evidence of change during sentence”. It noted the work described above which had been done to address the claimant’s offending behaviour. It also noted that the claimant was in the process of being assessed as to suitability for a sex offender treatment programme, adding “and you are motivated to complete this work.” Section 5 continued: 
You are currently a standard prisoner on the IEP scheme. There have been several adjudications, including for threatening words and behaviour and assaulting another prisoner.
There have been many instances of self-harming linked to relationship issues with other prisoners, particularly if a relationship ends. You have been attending Healthcare and have had sessions with a Psychologist to examine the link between your relationship issues and self-harming.
32.	Section 8 of the November 2012 panel review set out the conclusion and decision of the panel. This was as follows:
The panel noted all information carefully. The panel gave you credit for the progress you have made by completing interventions to address your offending behaviour. You have also been motivated to meet sentence planning targets. 
However, against this the panel had to take into account the very serious nature of the index offences which will have caused the victim considerable psychological harm. Your offending suggests that you have a sexual preference for young boys and the panel believed that until you had completed work specifically linked to sexual offending your risk of committing similar offences will be high. The panel therefore concluded that at this stage the level of risk you pose cannot be managed in other than closed conditions. 
C4.5 Further work by Ms Lewis & the January 2013 PPCS letter
33.	Ms Lewis made further contact with Healthcare at HMP Maidstone on 4 January and 10 February 2013. In the meantime, the Public Protection Casework Section (“PPCS”) of the National Offender Management Service (“NOMS”) wrote a letter to the claimant on 10 January 2013. I shall refer to this letter as “the January 2013 letter”. It stated that the Secretary of State had considered the Parole Board recommendation, and agreed with the Parole Board’s view for the reasons given by the panel. 
34.	After summarising what had been said in the November 2012 panel review, the January 2013 letter continued: 
The responsibility for addressing your risk reduction rests with you. However the Secretary of State has identified from the information contained within your dossier the following further interventions in closed conditions to help you address these factors. Please note that the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources. In addition, some interventions have entry requirements and may not be appropriate for you following these assessments. In these circumstances other offending behaviour courses/interventions may be considered to help you reduce your risks. 
…
·	The panel considered that your offending suggested that you have a sexual preference for young boys and believed that until you have completed work specifically linked to sexual offending, your risk of committing similar offences would remain high. Therefore, you are required to address your sexual offending behaviour.
·	You are required to complete any further work recommended by professionals assigned to your case. 
Your review period is therefore set at 18 months
Your next parole review process will be undertaken in accordance with the Generic Parole Process, a new centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board. Your parole review will commence in November 2013, and will aim to be concluded by July 2014. 
Should your case progress to the oral hearing stage, you will be notified by the Parole Board nearer the time about the exact date of the hearing, which will have a target month of May 2014. 
C4.6 Completion of the Lewis assessment in February 2013
35.	I have mentioned above some of the work that was done by Ms Lewis in order to prepare her report. In addition Ms Lewis made contact with the claimant’s offender supervisor (“OS”), the claimant’s offender manager (“OM”), and staff at HMP Send, a women’s prison near Guildford in Surrey. Ms Lewis’s work was reviewed by Ms Sharpe. Following that review Ms Lewis’s report was signed by Ms Lewis and countersigned by Ms Sharpe on 5 February 2013. 
36.	In paragraph 1.2.2 of her report Ms Lewis noted that a significant time had elapsed since August 2012 when she had interviewed the claimant. This, said Ms Lewis, had been due to the complex nature of the claimant’s case and wanting to ensure that the report was an accurate assessment of the claimant’s current needs. Ms Lewis added that the report had been “disclosed” to the claimant on 5 February 2013, and that the claimant’s comments in that regard had been added to the report in italics.
37.	I shall refer to the report as the “Lewis assessment”. It included the following: 
1.3.3 Relationships with people
1.3.3.1 During interview [H] identified that she had good relationships with female teachers however did not with male teachers, highlighting that she feels mistrustful towards men. It is possible that her mistrust stem from her reported negative relationship with her step-father. Another possible explanation is that [H] may be scared of men, due to her own transgender issues. …
…
3. Treatment need targets
3.1 The Structured Assessment of Risk and Need (SARN) Treatment Need Analysis (TNA) framework assesses dynamic (changeable, psychological) risk factors. These factors have been identified through psychological research as risk factors associated with male sexual offenders. … [H] at the time of offending was legally male, and had been living predominantly in role as a male at that point in her life, although she had started to spend some time in role as a woman. There is limited research into dynamic risk factors and attitudes associated with female sexual offenders. I have considered it appropriate, therefore, to use the TNA in [H’s] case as a guide to make my assessment. Upon doing so I have identified schemas that I considered could be factors linked to an offending pathway, which are not captured under the TNA framework. From completing this, this has led me to conclude that the following factors appear to be relevant to her sexual offending. A grid showing a summary of the evidence for each risk factor is attached as an appendix to this report. During treatment I consider that the following areas should be explored.
3.2 Child abuse supportive beliefs
… Child abuse supportive beliefs, and the justifications that enabled her to sexually offend against a child, should be explored and addressed in treatment. In my opinion her sexual behaviour and justifications to offend are also linked with her fusion of emotional intimacy and sex in addition to her ideologies of relationships.
3.3 Feeling inadequate – related to schema of negative self image
3.3.1 In interview …[H] reports that the only time she was happy was when she was in a relationship, although acknowledged that she was “needy and intense if in relationship”. It appears her negative image has influenced her behaviours among her peers behaving in a manner to try to make people love her, where she feels able to fit in. This indicates that [H] has problematic attachment styles and defines herself by her relationships, if she is not in a relationship, she considered herself to be worthless. Furthermore strives to seek control of situations to make people love her and manage her own sense of inadequacy.
3.3.2 [H] is now living in role as a female and is attending appointment at the gender clinic. She reports that she feels happier within her self and feels that her family have started to accept her as female. [H] has not self harmed for a significant period of time. The last time she self-harmed was following a breakdown of a relationship. This seems to be a pattern that has been evidenced both in the community and custody. It appears that one of [H’s] most vulnerable times is where her negative self image is magnified is when she feels rejected by other people.
3.3.3 [H’s] negative self image should be explored within treatment with a view to developing a healthier self-image and learning to cope with emotional problems better.
3.4 Out of control emotions
…
3.4.3 During her time in custody there are examples of [H’s] vengeful behaviour, where she has made threats against herself, other prisoners and staff when she has not received her own way. [H] has acknowledged that she throws a tantrum to receive the attention if things did not go her way or if she thought that people had more attention than her.
3.4.4 On consideration, [H’s] vengeful behaviour appears to be particularly triggered when her self image is threatened and appears to be strongest when she feels rejected or abandoned in some way. In my opinion this behaviour is linked to her negative self image and her negative attachments in relationships. Whilst this behaviour is not evidenced in her sexual offending, it has influenced other offending. Furthermore this behaviour is linked to factors which I have assessed as driving her offending forward. This should therefore be explored within treatment.
3.5 Feeling more comfortable with children than adults
3.5.1 [H] appears to have had several friends and ‘relationships’ with males some years younger than herself. The age gap ranges from 2-4 years. [H] did, however, have some female friends who were of similar age. [H] reports feeling very mistrustful towards adult males, this may have influenced her decision to seek the company of much younger males. …
…
3.5.3 In custody it has been reported that “She generates attention from the younger insecure sex offenders” (cnomis entry 11/06/2012). It should be noted that it is difficult to conclude whether this is generalised to all her behaviour and interactions in prison as this comes from one source based on her wing behaviour. It is possible that [H] feels more comfortable and able to communicate with individuals who she considered to be less intimidating or threatening, linked to her negative self image and her relationship attitudes. It appears that [H] is some what fearful about being rejected or abandoned. It would be logical for her to want to form relationships with people who she feels will not easily reject her, such as younger people or those who are timid or insecure. I therefore consider that this area should be a treatment target. 
3.6 Not having emotionally intimate relationships with adults
…
3.6.4 [H] had 12 sessions with Clinical Psychologist Leigh Curtis (whom she initially had reservations about working with being male) whilst at HMP Maidstone. The focus of these sessions was on her self-harming behaviour, although also spent a small period of time looking at her relationship beliefs. I have spoken with Mr Curtis, he encouraged her to look and change her definition of what love is, as it was identified that she could not leave a relationship if she loved them, regardless of what how negative that relationship maybe. It appears that [H] reacts to her feelings and emotions and her strong emotional attachment overrides any negative thoughts about the relationship. In addition to this [H] appears to have developed a strong mistrust and dislike in adult males. It is possible that this dislike for males is strengthened by her dislike of her ‘male body’. [H] reports in interview that males use, manipulate and control women and “think with their dicks”. This level of mistrust and dislike appears to be life enduring, and is evidenced in her interactions with others from childhood where she reports feeling mistrustful of male teachers and more comfortable with female teachers. Furthermore she had had very limited male friendship peers. Mr Curtis stated that in his opinion [H] would benefit from experiencing long-term therapeutic environment and relationships, to work on her interpersonal skills and core beliefs about relationships. In my opinion [H] has developed a cinematic romantic ideology about relationships, where love is very powerful and conquers all. I consider that [H’s] perceived need to be in a relationship where she feels wanted and loved was a significant driving factor for offending (see 3.8.1). Additionally, her negative relationship attachment style, mistrust in males is significant enough to negatively affect the level of intimacy within her future relationships with adult men and consequently may be more drawn to people she feels less threatened of such as children. I consider that this is a primary treatment area that is associated with her offending that is also associated with her problematic relationship attachments and schemas.
…
3.10 Additional risk factors/treatment needs – not covered by the TNA grid
…
3.10.2 Core Beliefs – “Girl Power”
3.10.2.1 [H] has adopted a ‘girl power’ approach to her life, which is linked to her admiration of the Spice Girls. [H] states that she has had this approach for a number of years prior to custody; however, she states that she uses the rules more positively than negatively. In the past she admits that she twisted this rules and was horrible to people. She describes the rules of girl power
·	Approach life with attitude
·	Don’t let a man tell you, you can’t do something because you are a girl
·	Be in control of your own life and destiny
·	Make up your own rules for yourself – meaning you know what outlook to have in life. [H] provided an example of that rule “don’t let people get close to me until I’ve worked them out”
[H] appears to strongly associate the girl power ideology to the female gender role. It appears that [H] admires and is drawn towards strong domineering powerful roles of women. This could be linked to her mistrust of males, and negative male adult relationships. In order to protect herself, she feels that she needs to take control and charge of males, as other males have done to her. This again indicates a negative relationship attachment style and lack of awareness of emotional intimacy. It is reasonable to consider that her current use of ‘girl power’ may hinder her ability to develop intimate relationships, and therefore may link to the treatment need ‘not having an intimate relationship’ and negative attachment styles. In my opinion this should be monitored throughout her treatment and after care and should be explored further in conjunction with her relationship attachments and schemas.
3.11 Case formulation
3.11.1 Given that the TNA grid in this case should only be used to guide my decision making, I have also considered the underlying factors that may have led [H] to sexually offending, using a case formulation. [H’s] childhood experiences of abandonment and abuse have led to a schema that people leave her or use her. This has led to her developing a strong mistrust of adult males and with a negative self-image linked to inadequacy. This has impacted negatively on her attachment style and her relationships, namely without a relationship she feels that she is ‘nothing’. [H] feels that she needs to be in a relationship with someone in order to be loved, this indicates to her that she is a good person improving her self-esteem and that feels that she is needed. [H] defines herself through her relationships. [H] has developed an relationship ideal, where she expects people want to be with her all the time, expects a high level of sex as intimacy, and expects everything to be perfect all the time, in the case of a disagreement she expects a intense romantic resolution. Her ideal ideologies are vastly different from her reality and life experiences, which then threatens her self identity. This leads to feelings that she needs to be loved and will do anything to achieve or retain that love from another, regardless of whether it breaks the law or is inappropriate (as in the case of her victim). If her self identity is threatened, for instance by a break-down of a relationship, [H] vengeful schemas are triggered and she engages in behaviour to gain retribution in an attempt to regain her self-image. I therefore consider that her primary schemas underlying her sexual offending are ‘inadequacy’, ‘mistrust’ and ‘attachment’ (relationship ideologies), these can impact and can fuel the others and therefore should be targeted within treatment. Her secondary unhelpful schema of ‘revenge’ is triggered by ‘inadequacy’ and ‘mistrust’, as this will also affect the quality of her relationships this should also be targeted and explored during treatment.
4. Factors Influencing Responsivity
4.1 Ability functioning
[H] undertook a Wechsler Adult Intelligence Scale, third edition (WAIS-III) assessment. … A letter written to [H] explains that the WAIS-III assessment indicated that [H] may be more suited to an adapted version of the Sex Offender Treatment Programme rather than the mainstream programme. … staff at YOI Aylesbury [discussed] … seeking permission from Operational Services Interventions Group (OSIG) to override these scores to enable her to participate on mainstream programmes. This has not yet been sought. … SOTP is a high intensity programme, with abstract concepts. As there have been concerns whilst she was at school regarding [H’s] level of understanding concepts this should be closely monitored during SOTP. In order to assist [H] on the mainstream SOTP, she may need additional support and treatment providers will need to consistently check and monitor her understanding of the concepts, and try to provide more concrete examples or analogies. Attending the adapted version on SOTP (Becoming New Me) may reinforce schemas of inadequacy or feeling stupid, which is of serious concern. I therefore consider that it would be more appropriate for [H] to complete the mainstream version with additional support from treatment providers, although permission from OSIG will still need to be sought. 
…
4.5 Group dynamics
4.5.1 As highlighted in 4.2, the other participants on the SOTP will be men. [H] has a strong distrust and dislike for men. [H] in her role as a female may be considered as a more vulnerable group member and distinctively different. This would be a different environment from when she completed other offending behaviour programmes, where she was in role as a man. Should [H] feel some what rejected, or strongly challenged by other group members there is a significant risk of her engaging in self-harming behaviour. …
4.5.2 Given her attitudes and schemas around men, and relationships it is likely that other group members may currently or in the past hold views about women that re-affirm her mistrust and dislike in males. This is likely to impact on her treatment and may be psychologically harmful. …
4.6 Consideration of whether treatment needs be met through SOTP
4.6.1 [H] could be considered as suitable for the SOTP, given that she acknowledges committing a sexual offence against an underage male and that the time of offending was legally a male.
4.6.2 … The primary SOTP only targets a mild deficit of inadequacy, distorted intimacy imbalance (feeling more comfortable with children than adult), and lack of intimacy (not having an emotionally intimate relationship with adults), whereas I have assessed this to be significant and therefore will require more intensive treatment than what is targeted on primary SOTP. Furthermore, [H] has developed schemas around mistrust of males, and negative attachment relationship attachment styles that would not be targeted on primary SOTP. No research has been conducted to assess whether the SOTP is an appropriate target that reduces the risk of sexual offending in transgender prisoners and is a programme designed for men.
4.6.3 It is my opinion that attending SOTP at this time would be psychologically harmful to [H] given the risks that other group members may re-affirm her beliefs and mistrust about men. In conclusion, in my opinion a primary SOTP would not sufficiently explore all of [H’s] treatment needs, and may re-affirm her assessed treatment need and schemas about men. Given that I have assessed this as a significant treatment need factor (see 3.10) attending SOTP at this time would be psychologically harmful. I concur with Leigh Curtis’ opinion (following conversation) that the biggest area for her to work on is her interpersonal relationships and core beliefs about relationships and would benefit from engaging in long term therapeutic relationships and environment. These areas could be addressed sufficiently at a therapeutic community. If a therapeutic community was not available for [H] these areas can be explored through schema led work.
5. Recommendations for Treatment Pathway
5.1 I have assessed that [H] would not benefit at this time from attending and completing SOTPs, as these do not sufficiently address her deficits in relationships and associated schema. Without prior work to address these treatment areas, I am of the opinion that SOTP would be psychologically harmful (see 3.10; 4.6.2). To address her relationship issues and associated schemas [H] should be assessed for suitability for a Therapeutic Community. This recommendation is made irrespective of her gender status. Of note HMP Grendon and HMP Dovegate run male therapeutic communities. HMP Send runs a female Therapeutic Community. I have spoken to a staff member who has worked at this female therapeutic community, who informs me that they have previously had residents who have had diagnosis of gender dysphoria who are not legally female. It is unclear whether they would accept someone with a sexual conviction; I have contacted staff at HMP Send to gain clarification to no avail. A therapeutic environment will enable her to adequately explore and address her relationship deficits. This environment will also enable her to explore and address her other treatment areas as outlined in section 3. Following completion of a Therapeutic Community her progress addressing these treatment areas (section 3) should be assessed to establish whether there are any treatment needs outstanding associated with her sexual offending and whether these should now be addressed through SOTP.
38.	On 6 February 2013 the claimant signed a section of the Lewis assessment recording that she had had the chance to read the report and discuss it. In a space for comments she wrote that she was happy with the report and thought it was well written and precise. 
C4.7 Attempts to implement the Lewis assessment up to July 2013
39.	In accordance with the recommendations of the Lewis assessment, rather than seek immediately to find a place for the claimant on a core or modified SOTP, during the period from February to July 2013 attempts were made to enrol the claimant in a therapeutic community. 
C5. HMP Lewes: 8 July 2013 to 7 January 2014
40.	In mid 2013 HMP Maidstone was given a new role as a prison for foreign national prisoners. For this reason the claimant was transferred to HMP Lewes on 8 July 2013. 
41.	At HMP Lewes a sentence planning review meeting was planned for September 2013. However it did not take place. The reason was that, although applications to therapeutic communities at HMP Dovegate and HMP Grendon had been unsuccessful, it was believed that a move to a therapeutic community might nevertheless soon take place. The meeting was postponed to later in the year. 
42.	On 2 November 2013 the claimant’s mother wrote to HMP Lewes about the claimant. A letter in reply was sent by Mr Nigel Foote, Governor of HMP Lewes, on 12 November 2013. His letter stated, among other things:
… I am familiar with [H’s] case and spoke with her last week concerning her frustrations and wishes to move.
… my offender manager is actively seeking a suitable Category C prison for [H] to move to.
…
I have no positive news for you at present; the prison population is currently rising again … We are receiving very few spaces for progressive moves at this time. As soon as we have secured a suitable space, [H] will be informed of this, but please let me assure you, [H’s] case is a priority for us and we are trying very hard to progress this.

43.	Returning to the sentence planning review meeting that was postponed from September 2013, the claimant’s offender manager was unable to attend the postponed meeting for personal reasons. What then happened was that Ms Claire Earnshaw, the claimant’s offender supervisor, produced a Sentence Planning and Review Report (“the December 2013 Earnshaw report”) on 19 December 2013. 
44.	The December 2013 Earnshaw report recorded that efforts had been focused on finding a suitable placement in a therapeutic community. It set out the then current position in that regard. By that time an application made to HMP Channings Wood had been unsuccessful. However, a renewed application had been made to HMP Grendon, where the claimant’s application had initially been rejected but was now being reconsidered.
45.	Later that month a Parole Assessment Report Offender Manager (PAROM 1) report was prepared by a probation officer, Mr David Steel, in the absence of the claimant’s regular Offender Manager. In his report Mr Steel encouraged further assessment as a priority either for suitability to enter the therapeutic community at HMP Send, or for an ad hoc intervention with suitably trained psychology or probation staff. As regards HMP Send, however, in Russell 1 Mr Russell stated that HMP Send was not a suitable option, as it is a female prison and the claimant remains in the male prison estate.
46.	Both the December 2013 Earnshaw report and Mr Steel’s report noted that the claimant had recently reported being raped, and that this was the subject of police investigations.
C6. HMP Elmley: 7 January 2014 to 25 March 2015
C6.1 Move to HMP Elmley and reply from HMP Grendon
47.	As a consequence of the claimant’s rape allegation and the police investigations the claimant was transferred from HMP Lewes to HMP Elmley on 7 January 2014. Also in early January 2014 HMP Grendon advised that the renewed application had been unsuccessful. The claimant was considered unsuitable to take part in the therapeutic community there. Reference was made in that regard to:
(1)	the claimant’s stance on the index offences;
(2)	factors, similar to those identified in the Lewis assessment, that meant that the claimant would be particularly sensitive at present to being challenged by male offenders in a group environment; and 
(3)	the claimant’s personality disorder traits.
C6.3 The pre-action protocol letter of 17 January 2014
48.	On 17 January 2014 Swain & Co on behalf of the claimant sent a pre-action protocol letter. Section 4 of the letter was headed, “Details of the matter being challenged.” Under that heading three complaints (the “pre-action protocol complaints”) were made. 
49.	The first pre-action protocol complaint concerned failure to comply with the defendant’s “public law duty to meet the claimant’s transgender needs”. It was suggested that the matters relied upon in relation to this complaint also gave rise to an argument that there had been arbitrary detention under article 5 of the Convention. The matters relied on comprised failures:
(1)	to locate the claimant properly;
(2)	to provide “relevant risk reduction interventions/work to enable the claimant to evidence risk reduction to the Parole Board”; and 
(3)	to conduct a sentence planning meeting review.
50.	The second pre-action protocol complaint was that the defendant had discriminated against the claimant. This was said to have come about by failing to comply with:
(1)	positive duties under the Equality Act 2010; and
(2)	“the duty of care to the claimant by not preventing two serious sexual assaults on the claimant”.
51.	The third pre-action protocol complaint concerned a Prison Service Instruction (“PSI”). It was said that the defendant was not meeting “duties in accordance with PSI 07/2011” [concerned with the care and management of transsexual prisoners] because HMP Elmley had failed to provide the claimant with a copy of its local policy “for the management of transgendered prisoner”.
52.	Section 5 of the pre-action protocol letter was headed “The Issues”. It gave a lengthy account of the factual background.
53.	Section 6 of the pre-action protocol letter was headed “Legal Issues”. It referred to decided cases and other materials which were apparently relied on to demonstrate a legal basis for the three pre-action protocol complaints.
54.	In section 7 of the pre-action protocol letter Swain & Co said that the defendant was expected within 14 days to confirm that seven specific actions (“the pre-action protocol demands”) would be taken. I return to the pre-action protocol demands in section D below.
55.	The pre-action protocol letter sought a reply by 31 January 2014. No reply was in fact sent by the defendant either before or after that date. There has been no explanation for this failure. However, as explained in section D below, certain of the pre-action protocol demands were addressed during the remainder of 2014.
C6.3 KSPS involvement; CBT begins: February to June 2014
56.	It was after HMP Grendon’s second rejection that Mr Russell and KSPS became involved. Discussions took place involving Ms Lewis, Mr Russell, and the “in reach” team. The “in reach” team were mental health service providers supplied by the local NHS trust. At a meeting on 24 April 2014 it was concluded that the claimant’s primary treatment needs were (as had previously been identified) to work on her core beliefs about herself, about others and about relationships. These were factors which were not only relevant to her offending behaviour generally, as identified in the Lewis assessment, but were also factors which had prevented the claimant from participating in the therapeutic community at HMP Grendon. It was decided that the claimant should be referred for Cognitive Behavioural Therapy (“CBT”) through Kent Council on Addiction (“KCA”) as a next step. 
57.	Mr Russell’s second witness statement (“Russell 2”) explained that the meeting on 24 April 2014 had been arranged to ensure sentence planning continued with a view to providing appropriate opportunities to reduce the risk of re-offending.
58.	Ms Lewis met the CBT therapist on 29 May 2014. Arrangements were made for 8 sessions of CBT. These sessions were designed to focus on five treatment targets: 
(1)	the claimant’s anxiety in relationships if they breakdown, 
(2)	depression, 
(3)	self-esteem, 
(4)	anger; and 
(5)	dealing with conflict including compromise. 
59.	Russell 1 explained that these treatment targets related to issues that had been identified in the Lewis assessment as the claimant’s primary treatment needs. They were also factors that had prevented the claimant from accessing therapeutic communities, such as HMP Grendon.
60.	The course of CBT sessions began in June 2014. Russell 1 added that at around this time an approach was made to Millfields Therapeutic Unit, a Personality Disorder Unit providing specialist therapy. This approach, Mr Russell explained, was linked to previous diagnoses of borderline personality disorder and significant traits of histrionic and narcissistic personality disorders. Aspects of this disorder and these traits were relevant to the claimant’s sexual offending and were preventing her from accessing a therapeutic community.
C6.4 Millfields interview & issue of claim form: 10 July 2014
61.	Millfields Therapeutic Unit interviewed the claimant on 10 July 2014. On the same day the claim form in the present case was issued: see sections A and B above. 
C6.5 Mr Russell, the claimant, the OS & OM meet: 13 August 2014
62.	Mr Russell met with the claimant and her OS and OM on 13 August 2014. This is said in Russell 2 to have been a further meeting arranged to ensure that sentence planning continued with a view to providing appropriate opportunities to reduce the risk of re-offending.
63.	In Russell 1 Mr Russell records explaining to the claimant that, in addition to the Millfields Therapeutic Unit, there were other treatment options available within the prison service for addressing personality difficulties. In particular, he had identified that the Beacon Service at HMP Garth and the Progression Service at HMP Belmarsh provided such services and accepted sexual offenders. 
64.	However at the meeting on 13 August 2014 the claimant said that she had a Parole Board hearing shortly and she was also due to have a meeting that would trigger her gender reassignment certificate being issued within 3 months. She explained that she did not want to be referred for further treatment services, including Millfields or HMP Garth, prior to the outcome of the Parole Board hearing.  The claimant also stated that she would prefer to transfer to a female prison and would like to access the therapeutic community at HMP Send. The claimant additionally raised concerns about transfer to the Millfields unit as she did not want to be detained under the Mental Heath Act.
C6.6 The remainder of 2014
65.	In Russell 1 Mr Russell records that on 21 August 2014 he had a meeting with in reach services.  The CBT sessions had recently finished and the claimant had reported them as being useful. In response to the claimant’s request to suspend referrals with respect to personality disorder work, it was agreed to have another meeting in 3 months, and that in the meantime the claimant would be offered one-to-one psycho-education sessions through in reach services to develop awareness of her diagnosis for personality disorder.  
66.	The application for permission to apply for judicial review in the present case, along with the defendant’s acknowledgement of service and a reply on behalf of the claimant, came before Collins J for consideration on the papers. By an order dated 8 October 2014 he gave permission. Under the heading “Observations” his order stated:
The key point surely is that there should be some course or perhaps individual treatment which can deal with the risk of sexual offending. It is arguable that the absence of this is (as the Parole Board appears to have indicated) fatal to progress in being able to achieve parole. …
67.	On 26 November 2014 Millfields Therapeutic Unit advised that the claimant’s sexual interest in children made her unsuitable for treatment there. They suggested making a referral to the Portman Clinic.
68.	On 28 November 2014 an addendum Sentence Planning and Review Report (“the November 2014 Collins report”) was prepared by the claimant’s new OS, Ms Ruth Collins. It recounted targets that had featured in the claimant’s sentence plan, the attempts to find a place in a therapeutic community, and completion by the claimant of the CBT sessions. 
69.	In a review of the claimant’s behaviour during 2014 the November 2014 Collins report gave an account of negative behaviour. The defendant describes this as having included “anti-authoritarian actions, being rude and argumentative with staff and other prisoners, and making false and manipulative allegations of discrimination on the grounds of being transgender”.
70.	Paragraph 7.1 of the November 2014 Collins report set out Ms Collins’s recommendations:
[H] has not completed any work focussed on her sexual offending and as such there is no evidence of reduction in risk. Coupled with this, her custodial conduct is not of a standard that would be expected of a prisoner who is ready to progress to the open estate. My recommendation at this time is that [H] remains in closed conditions until suitable offending behaviour work can be undertaken, and a reduction in her risk to children, and risk of sexual offending can be evidenced. This will also give [H] the opportunity to demonstrate a sustained period of pro-social behaviour in custody.
71.	The November 2014 Collins report, along with other material, was considered by a panel of the Parole Board in advance of a hearing which took place at HMP Elmley on 5 December 2014. As recorded in a letter from the Board dated 31 December 2014, the hearing was attended by the claimant, her solicitor Mr Kingham, her OM and her OS. 
72.	What happened at the panel hearing on 5 December 2014 was that the highly complex nature of the claimant’s case led the panel to propose that the hearing be treated as a directions hearing. Mr Kingham agreed to that course. Directions were then discussed during the course of the hearing. Direction 4 required the Prison Service to instruct a clinical and forensic psychologist to provide a report to the Board. The panel directed that the psychologist:
… shall consider the links if any between gender dysphoria and your offending history and all other aspects of your history, your offending behaviour and your risks and shall advise on an appropriate treatment pathway to reduce those risks 
73.	The panel hearing was adjourned to 12 June 2015 in the first instance. In that regard the panel noted that it might need to be further adjourned, and that the “considerable time invested by panel members in considering this highly unusual case and its complexity requires, if possible, that there should be continuity”.
C6.7 The period from 1 January to 25 March 2015
74.	Russell 1 and Fisher 1 were both made on 21 January 2015, and were served along with the detailed grounds of defence. Fisher 1 made reference to a recently received report of Dr Nimmagadda. This identified that the claimant, by virtue of personality type, might be drawn towards behaviour characterised by self aggrandisement, unstable moods, and an over inflated sense of self-worth. It also identified that the claimant had acted in ways suggesting that she does not believe the usual rules apply to her and instead that she believes that she is ‘special’ and ‘should not be criticised’. 
75.	Fisher 1 added that there had not yet been a comprehensive psychological assessment of the claimant in connection with this condition or more generally. This was said to be unsurprising, as it is usual to wait until a person is around 25 before formally assessing them for personality disorders. The clinical rationale for this is that Personality Disorder is considered to be a result of disrupted development.  There is a broad professional consensus that Personality Disorder should not be diagnosed in adolescents because personality development is not complete and symptomatic traits may not persist into adulthood.
76.	Paragraphs 14 to 20 of Fisher 1 stated, among other things:
14.	In my opinion, I think that the most appropriate treatment pathway for the Claimant is as follows:
(a)	A comprehensive NOMS psychological assessment should be carried out to obtain a full diagnostic appraisal of the Claimant’s mental health needs, to assess the impact of this on the Claimant’s offending, and what steps ought to be taken in consequence of this assessment.  It may well be, given what has been observed, that this will be the primary treatment pathway for the Claimant, i.e. the highest priority step to take given that it has the greatest likelihood of reducing risk as much as possible in the shortest time possible, and thereby helping her progress as quickly as possible through the prison system. 
(b)	In parallel with (a), a further assessment following the one-to-one psychological work carried out at HMP Elmley to decide what the highest priority risk reduction work is for her.
…
16.	I understand that the Claimant is suggesting that all that needs to be done is to complete some form of SOTP, or at least that this is the only appropriate next treatment step and therefore (depending on her response to treatment) progression through the prison system toward release.  In reality that is but one aspect of what is likely to be needed, and other matters may be much higher priority i.e. more likely to lead to bigger risk reduction sooner, to her benefit, or enable other work (eg sex offending specific work) to be effective or more effective. 
17.	The specific aspects of the Claimant’s offending history suggest that many of her risk issues related to sexual offending may be more complex than those addressed by Core SOTP alone, and require a consequently more complex treatment pathway. Indeed, in general terms, her case appears to be among the most complex. In particular, there are possible overriding concerns about stalking and obsessive, repetitive behaviour. Further, access to sex offending specific treatment may not be of benefit at this stage because of the Claimant’s assessed and inferred personality characteristics that warrant further inquiry and might adversely affect the likely benefit of completing the Core and affiliated SOTPs. … 
18.	In more complex cases, such as the case of the Claimant, a variety of treatment approaches may be needed in order to maximise what can be achieved for the Claimant in terms of risk reduction, and to maximise the likely outcomes for public protection assurance. In the Claimant’s case, given the psychiatric and clinical opinion in the case, it is my opinion that accredited SOTP work is likely to be one part of a broader range of treatment needs which need to be addressed to enable the best outcomes for the Claimant in terms of sustained treatment effect and for public protection in the future (including enabling her to comply with any future licence requirements upon release). To ensure that the most appropriate pathway can be followed in the Claimant’s case, a review of the Structured Assessments of Risk and Need (SARN) should be undertaken, and the outcome included in the psychological assessment as described above at paragraph 14(a), in the light of subsequent progression since the SARN was written.
…
20.	Ensuring that therapeutic interventions and psychological treatments, as well as other aspects of the person’s sentence plan are sequenced meaningfully can increase the likely treatment gains attained. This is a widely held view amongst professionals working in the criminal justice field, and is the reason why prisoners will all have individual sentence plans, which will include however many pathways as are necessary, in the appropriate order. Completing risk reduction work that is likely to be of the most benefit, in the optimal order, with the full engagement of the prisoner in the process, will maximise potential benefits to the prisoner and the public as a whole. 

77.	On 22 January 2015 Mr Russell met with in reach services and Ms Ayres, the claimant’s OM, to discuss the claimant’s future treatment, the need for further assessment and possible transfer to another site for this purpose. This was followed by a meeting on 9 February 2015 between Mr Russell, the claimant, and Ms Collins, the claimant’s OS, to discuss her future treatment and potential transfer to another prison. The claimant was willing to transfer but raised concerns in relation a referral to the Portman Clinic.
78.	Mr Russell met in reach services on 23 February 2015 to help facilitators discuss the links between the claimant’s personality disorders and offending behaviour. By this date, the claimant had completed 2 out of a planned 7 sessions of “understanding personality disorder”, with more due to take place by the end of March 2015.
79.	In March 2015 further evidence was filed in the present proceedings. Mr Kingham’s second witness statement (“Kingham 2”) asserted, among other things, that completion of a recognised sex offender treatment programme is a pre-requisite for release for those indeterminate sentence prisoners who have been convicted of serious sexual offences. 
80.	In response to Mr Kingham, Russell 2 stated, among other things: 
Mr Kingham tries to suggest that all sex offenders must undertake an SOTP to be released, relying only on an anecdotal account of his own experience. I do not accept this, since the Parole Board will look at all factors and treat each case individually – though often, of course, demonstrating progress on an SOTP will be important. But in any event, it is not relevant in this case. The relevant point is that the Claimant needs much more than just an SOTP, and that other assessment and (most likely) other treatment needs to be undertaken first.
C7. HMP Whatton: 25 March 2015 onwards
81.	The claimant was transferred to HMP Whatton on 25 March 2015. HMP Whatton is a specialist site for sex offenders.
82.	On 24 April 2015 Mr Russell made a third witness statement (“Russell 3”). It is concerned with the claimant’s sentencing plan reviews.
D. Alleged breaches
D1. Alleged breaches of the public law duty 
D1.1 Aspect 1 of the public duty: adequate systems
83.	The claimant contends that the public law duty required the defendant to put in place adequate systems to enable transgender prisoners who have committed sexual offences to complete accredited sex offender treatment programmes. I have italicised the last 5 words because they have been substituted for what was conceded in Wells, which was a duty to make provision allowing relevant prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. I am not persuaded that the substitution is apt. 
84.	The essential basis for the substitution is the evidence of Mr Kingham. He is a solicitor who is very experienced in this field. He states, and I have no reason to doubt, that in his experience completion of a recognised sex offender treatment programme has been a pre-requisite for release for those indeterminate sentence prisoners who have been convicted of serious sexual offences. However that cannot rule out the possibility that something other than completion of a recognised programme may demonstrate the necessary reduction in risk. 
85.	In particular, in the present case the Lewis assessment contemplated in section 5.1 that the necessary reduction in risk might be achieved by work in a therapeutic community or by schema led work. In the final paragraph of paragraph 5.1 Ms Lewis contemplated that if, on emerging from a therapeutic community, there remained treatment needs associated with sexual offending, then a question would arise as to whether they should be addressed through SOTP. Thus Ms Lewis contemplated that even if participation in a therapeutic community did not achieve the reduction in risk necessary for release something other than an SOTP might be a preferable way of achieving that reduction. 
86.	Moreover, in my view, elementary public law principles would prohibit the Parole Board from taking an approach which invariably insisted on completion of a recognised programme. The board’s task is to make its own assessment of risk. It cannot fetter the ways in which reduction in risk may be demonstrated, nor can it delegate its decision to those who run accredited programmes.
87.	I add that even if it were right to focus exclusively on recognised programmes, in the present case any failure to provide such a programme suitable for transgender prisoners has thus far been immaterial. As Ms Lewis observes in paragraph 5.1 of her assessment, what is needed as a first stage is work which addresses various non-SOTP treatment areas. This is, in effect, the point made in Russell 2 in answer to Mr Kingham. I consider that for this reason also the complaint about inadequate systems cannot assist the claimant in the present proceedings.
D1.2 Aspect 2 of the public duty: unreasonableness
88.	I will assume for present purposes that:
(1)	the defendant must not unreasonably fail to provide meaningful risk reduction work to the claimant; and
(2)	the claimant must complete specific risk reduction work aimed at her risk of sexual offending before she can have any meaningful chance of release.
89.	In public law terms a test of “unreasonableness” will often involve a high threshold. In the present case I do not think the height of the threshold matters. The claimant is now 5½ years into an IPP sentence with a tariff of 3½ years. That does not of itself show that there has been a failure to provide meaningful risk reduction work to the claimant. Still less can it, without more, show that there has been an unreasonable failure to provide meaningful risk reduction work to the claimant. But the length of time in custody since completion of the tariff is such as plainly to call for explanation. 
90.	In that context the defendant has been at pains to stress that work done thus far is meaningful risk reduction work which is relevant to the claimant’s sexual offending. In his oral submissions Mr Bunting described this as “cherry-picking” and “tinkering around the edges”. Nonetheless in my view the evidence shows that the CBT and in reach work is highly relevant to the claimant’s sexual offending.
91.	There is, however, rightly no suggestion by the defendant that the claimant has thus far been offered work which, if satisfactorily completed, would mean that the claimant would no longer pose a real risk to children. The question is, why not?
92.	To my mind the Lewis assessment and the evidence of Mr Russell and Mr Fisher, supported in part by observations in the Parole Board’s letters, provide a full and comprehensive answer to that question. The claimant’s case is considered by all involved to be particularly complex. The full extent of those complexities had not emerged at the time of the November 2012 panel review and the January 2013 letter. It is a tribute to the care and painstaking work of Ms Lewis that they were brought out so fully in her assessment. As noted in section D1.1 above, she has identified that the first stage is work which addresses various non-SOTP treatment areas. It was reasonable on the part of Ms Lewis to propose investigating whether a therapeutic community might provide such work. After the renewed application to HMP Grendon was unsuccessful, it was reasonable to approach the Millfields Therapeutic Unit – an approach which merited an interview on 10 July 2014. It was also reasonable on the part of Mr Russell, when he met the claimant on 13 August 2014, to propose other treatment options for addressing personality difficulties.
93.	It is convenient at this point to return to the first four of the pre-action protocol demands (see section C6.3 above). Demands (1) to (3) sought confirmation concerning possible placements at HMP Grendon and HMP Send. There is in my view no reason to doubt that, whatever may have been the position in January 2014, by the time the claim form was issued the claimant knew that the renewed application to HMP Grendon had been unsuccessful and that a transfer to HMP Send could not take place until after gender re-assignment. Demand (4) concerned what risk reduction/interventions would be offered by way of alternative to HMP Grendon or HMP Send. There is in my view no reason to doubt that, whatever may have been the position in January 2014, by the time the claim form was issued the claimant knew that a course of CBT was under way, and that an application had been made to the Millfields Therapeutic Unit. 
94.	Moreover if there were any reason to doubt that these things were known to the claimant on 10 July 2014 when the claim form was issued, there can be no doubt that the claimant was aware of them by the end of the meeting with Mr Russell on 23 August 2014. At that meeting the claimant opposed transfer to Millfields and opposed investigation of other treatment options for addressing personality difficulties. It was reasonable, in the light of that opposition, to suspend further consideration of alternative options.
95.	What is now to take place is that there is to be, and indeed may already have been, a full report from a clinical and forensic psychologist as directed by the panel on 5 December 2014. This, too, appears to me to be undoubtedly a reasonable course. 
96.	For the purposes of the hearing before me, four specific complaints were made in the claimant’s skeleton argument. Taking them in turn:
(1)	It was only in March 2015 that the claimant was transferred to a prison with expertise in the treatment of sexual offenders, HMP Whatton, and “no explanation has been provided for failing to make this transfer more promptly”: as to this, no reason has been advanced for thinking that the claimant’s location has had any bearing on the ability to provide the work which the claimant needs at the present stage.
(2)	“No attempt has been made to provide the claimant with one-to-one work aimed at reducing her risk of sexual offending”: as to this, the comments above apply – the defendant is entitled to point out that there has been work aimed at reducing such risk, the real question is why the claimant has not yet been offered work which if satisfactorily completed could lead to release, and the answer is that those charged with addressing the claimant’s needs reasonably believe that other work is required first.
(3)	“Schema led work has not been provided”: as to this, the primary recommendation in the Lewis assessment was for work in a therapeutic community, and for the reasons set out above that recommendation has been taken forward, and alternatives considered and proposed, in a reasonable way.
(4)	“It has been clear since summer 2013 that the claimant is unsuitable for a transfer to a therapeutic community and that the reason for this is directly linked to her risk of sexual offending”: as to this, it is simply wrong – after the summer of 2013 there were discussions with HMP Grendon which led to a renewed application there, and when that was unsuccessful reasonable alternatives were identified.
97.	For all these reasons I am not satisfied that there was unreasonableness on the part of the defendant.
D1.3 Aspect 3 of the public duty: compliance with policy
98.	The defendant’s policy for indeterminate sentence prisoners provides for “managed and sequenced” sentence plans. There plainly were such plans in place for the claimant. The only complaint of non-compliance with policy made in the claimant’s skeleton argument is an assertion that the claimant “did not have any sentence planning meeting at all between 2012 and January 2015”. This complaint ignores the meeting on 13 August 2014, which may not have been formally described as a “sentence planning meeting”, but was undoubtedly a meeting attended by the claimant at which plans for the claimant were discussed. Moreover there is no suggestion that if there had been any additional meeting with the claimant during the period in question it would or might have made any difference to what in fact happened. For these reasons I conclude that there is no substance in this complaint. 
D2. Alleged breach of the article 5 duty
99.	As explained in section B2 above, the duty that arises under article 5 is to provide an opportunity reasonable in all the circumstances for relevant prisoners to rehabilitate themselves and to demonstrate that they no longer present an unacceptable danger to the public. Four grounds were identified by the claimant for saying that there had been a breach of duty in this regard.
100.	First, reliance was placed on the allegation that there had been a breach of the public law duty. As to that, the allegation of breach of the public law duty has failed. This ground thus falls away. However, the claimant rightly observes that the article 5 duty is not subject to limitations which may affect the public law duty, and accordingly I turn to consider the remaining grounds. 
101.	The second ground analysed particular features of the cases of individual prisoners considered by the Supreme Court in R (Kaiyam) v Secretary of State for Justice. This led to a rival analysis by Mr Lowe. In his written reply Mr Bunting complained that the defendant risked blurring the correct legal test, and had emphasised certain facts out of context, leading to a risk of confusion in identifying appropriate analogies. 
102.	The attempt to identify “appropriate analogies” was in my view misconceived on both sides. I am not assisted by a process which isolates out particular features affecting other individuals’ cases, and seeks to make a comparison by identifying the extent to which such a feature is or is not present in the claimant’s case. As was observed by the Supreme Court, whether the article 5 duty was or was not satisfied depends on the particular circumstances of the case in question. 
103.	The third ground urges that holding the claimant in local remand prisons from July 2013 to March 2015 was analogous to the breach of article 5 identified by the European Court of Human Rights in James, Wells and Lee v United Kingdom (2013) 56 EHRR 12. There, however, the breach of duty arose because it was the prison locations in that case that deprived the relevant prisoners of offending behaviour programmes. By contrast, the history of events in the present case shows that the prison location in the claimant’s case has been immaterial. Even if HMP Maidstone had continued to be a specialist site for sex offenders, and the claimant had remained there, there is nothing to suggest that what happened in her case would have been any different.
104.	The fourth ground is that even a short period of unreasonable delay can breach article 5. As to this, I have not found that there was any period of unreasonable delay. Thus this ground does not arise.
105.	Overall, the claimant’s case involved many complexities. I can identify nothing unreasonable about the way in which the defendant dealt with those complexities. As noted in section D1.2 above, I reach that conclusion without applying any particularly high threshold. For all these reasons, I am not satisfied that there has been any breach of the article 5 duty.
D3. Alleged breach of duty under article 14 not to discriminate
106.	As noted in section B3 above, the starting point of this complaint is that the claimant has been denied access to offending behaviour work on the basis of her transgender status. In argument Mr Bunting relied on Ms Lewis’s concern that gender reassignment carried a danger that the claimant might not be able to complete an accredited programme, her references to the claimant’s strong dislike for men and the claimant’s dislike of her male body, and her concern that the claimant would not be able to accept challenge from male offenders. These matters, submitted Mr Bunting, were directly connected with the claimant’s transgender identity, and impacted disproportionately on transgender prisoners.
107.	The short answer is that the claimant has not been denied access to offending behaviour work on the basis of her transgender status. The Lewis assessment concludes that the first stage is work which addresses various non-SOTP treatment areas. They concern the claimant’s interpersonal relationships and her core beliefs about relationships. The need for this first stage does not arise from the claimant’s transgender status. Since the Lewis assessment the need for this first stage has been confirmed. It is considered to be linked to the claimant’s borderline personality disorder and significant traits of histrionic and narcissistic personality disorders. While I agree with Mr Bunting that the claimant’s dislike of adult males is identified in the evidence as playing an important part in the need for this first stage, I am not persuaded that the evidence warrants a conclusion that the claimant’s gender dysphoria plays such a part. It follows that the alleged breach of article 14 is not established.
D4. Alleged breach of statutory duty not to discriminate
108.	The claimant’s analysis under sections 19 and 29 of the Equality Act 2010 has four stages (see section B4 above). Stage 1 is that the defendant’s provisions, criteria and practices are applied to those who are not transgender. That is undoubtedly true. Second, however, the claimant must show that they put those who are transgender at a particular disadvantage when compared with those who are not transgender. Third, moreover, the claimant must show that they put the claimant at that disadvantage. It is at the second and third stages that the analysis breaks down. Only the claimant’s case has been the subject of detailed evidence before me. In the claimant’s case, for the reasons given in section D3 above, it is not transgender status which creates any disadvantage. The claimant seeks to gain support from Ms Lewis’s observation that no research has been conducted to assess whether the SOTP is an appropriate target that reduces the risk of sexual offending in transgender prisoners. However absence of research is not evidence of a disadvantage. 
109.	Indeed the only positive evidence before the court is the evidence of Mr Fisher that there are at least 16 transgender prisoners currently taking part in SOTP courses with no issues. Mr Bunting submits that this is too vague, but it seems to me a precise statistic which points strongly against discrimination. Mr Bunting also notes an admission by Mr Fisher that a record is not kept nationally of transgender prisoners, but it does not seem to me that a lack of national records of transgender prisoners puts in doubt Mr Fisher’s accuracy in identifying at least 16 who are participating in SOTP courses without problems. 
D5. Alleged breach of duty under s 149 of Equality Act 2010
110.	As noted in section B5 above, two aspects of s 149 were relied upon. Both, however, were premised on the contention that the defendant operates a provision, criterion, or practice that makes the completion of offending behaviour coursework a prerequisite for release, particularly in sex offender cases. For the reasons given above there is no such, and cannot be any such, invariable prerequisite. 
111.	At this point I return to the final three pre-action protocol demands. These concerned the local transgender policy at HMP Elmley, transfer to an alternative establishment that could meet duties under the policy on transgender prisoners, and arrangements for a full sentence planning meeting review. In the circumstances described above, however, I cannot conclude that the defendant is or has been in substantial breach of either the general or local policy on transgender prisoners, nor is there any basis to think that there is or has been any substantial deficiency in the arrangements for sentence planning. On the contrary, it appears to me that the conduct of the defendant has exemplified an approach of painstaking care which is and has been fully compatible with the duties arising under s 149. Moreover, as it seems to me, compliance with the directions given by the Parole Board on 5 December 2014 is likely to continue that approach.
112.	In these circumstances I do not consider that this alleged breach of duty is established.  
E. Conclusion
113.	For the reasons given above I reach the conclusion that the defendant has not been in breach of duty. This conclusion has the consequence that it is unnecessary for me to decide, and I do not decide, whether the claimant’s conduct has been incompatible with a move to open conditions in any event. My conclusion also has the consequence that this application for judicial review must be dismissed.