Shit – meet fan

Up bright and early and on the phone to the Met. Wrong force, as it turns out, but they will pass the matter on all the same.

In court yesterday, as most of the trans community are now well aware, Judge Pontius reportedly uttered the immortal words: “This defendant is in the process of undergoing a sex change. Has it been completed?”

The story (in respect of Nina Kanagasingham) then went on with the suggestion that he had done so before decideing which prison to remand her to. Not so, according to the court: the decision as to where Nina is remanded sits squarely with the prison service and is nothing to do with the court.

So…er, why would he ask this, given it makes no difference to the outcome…and can hardly be germane to whether the defendant is or is not guilty of the crime of which she is accused.

Would we be happy with judges inquiring: “This defendant…is she black?” Or even: “This defendant is exceedingly well turned-out. Is he gay?”

Course not. But its OK if your transgendered? Bollocks to that.

And interestingly, the law seems to think much the same. Many thanks to Aunty Sarah and Zoe for drawing my attention to this, but it is a criminal offence under s22 of the Gender Recognition Act 2004 “for a person who has acquired protected information in an official capacity to disclose the information to any other person.”

Never been used, apparently. Or rather, not used before today. Because this morning i asked the Met to look at the judge’s words and to investigate whether the judge had committed an offence.

We shall see. Its been “crimed” – that is, given an official crime number – and the Met will now pass it on to City of London Police. My fault, my geography. I’d forgotten that the Old Bailey sat in their patch.

It is of course quite possible they will decide no case to answer. After all, there are exemptions, including where the disclosure is in accordance with an order of a court or tribunal, it is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal, or is for the purpose of preventing or investigating crime.

Hmmm. Arguable. But i’d say none of those quite apply here. So we shall see.

And if anyone else wishes to take action under this section, drop me a line. I can see it being very useful indeed.

jane
xx

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About janefae

On my way from here to there
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6 Responses to Shit – meet fan

  1. Sorry Jane, I had meant to point out that decisions about prison accommodation are made by the prison service, not the judiciary .. whose job stops at ruling whether someone should be remanded or “detained at Her Majesty’s pleasure”.

    We did try to pursue some Section 22 cases in the early days, in what should have been pretty open and shut cases. The offence is a so-called “strict liability” affair, which means that (apart from the legislative exceptions) there is no mitigating defence. It’s like running a traffic light or speeding. You may have been on a mercy mission, but it doesn’t alter the fact that you’ve broken the law. The only scope which the system has lies with determining the extent of the penalty. This is why s.22 has such potential ramifications for officials. You might get a much reduced fine, but there’s no avoiding the criminal record resulting from being investigated, arrested and convicted.

    That’s the theory…

    What we hadn’t factored is that it’s an offence that has to be heard in the Magistrates Court and (here’s the catch) it must be brought within 6 months. In all the cases we looked into this was the problem. The victims of unconsented disclosure hadn’t known this .. they didn’t know how to report it to the Police .. the Police didn’t know how to investigate it .. and the CPS were likely to be too late to bring a case with a prospect of conviction.

    Also, you need to bear in mind that the disclosure needs to be in the context of someone who has already obtained legal recognition or be about the fact of their application (both unlikely in this case).

    Section 22 isn’t a carte-blanche protection for trans people against being ‘outed’ by officials. It is designed to deal with a quid-pro-quo about privacy. GRA recognition provides the means for people to generally protect their Article 8 rights to private life. However, there are legitimate circumstances where a trans person with recognition may need to explain their background to an official. The purpose of s.22 is to provide protection for the individual’s continuing privacy in those specific circumstances.

    I hope that helps. And, incidentally, it’s a provision that I would never be able to reliably use myself, since I would be argued to have made my own history a permanent matter of public record. There would be no question of an official having disclosed anything that wasn’t deemed to be in the public domain already .. a sort of defacto consent. Otherwise I might have explored opportunities to use the provision myself. Instead, I just put the fear of God into officials I deal with

    • janefae says:

      thanks loads.

      I was aware of the prison service role – from the court manager at the Old Bailey – though this makes the remarks even more gratuitous.

      As you can see from my official complaint, i have taken on board the GRA limitations, and am asking them to take the Equality Act into considertion. The fact i am now going he judicial complaint route means this may make more headway.

      jane
      xx

  2. jamtartfairy says:

    “Course not. But its OK if your transgendered? Bollocks to that.”

    *you’re

    I’m being a nit picker!

  3. Some advice about Human Rights in this circumstance:

    There are two articles of the European Convention on Human Rights that are engaged directly here, plus a third indirectly.

    As the report above makes clear, Article 8 (the right to private and family life, home and correspondence) has already been found to apply. However, Article 8 is a ‘qualified’ right. That means it has to be weighed against other competing rights of others.

    Article 3 (the right not to be tortured or treated in an inhuman or degrading way) is arguably stronger, as it is an absolute right. However, its’ strength depends on the circumstances of Nina’s detention. It can be argued, for instance, that segregation mitigates the situation. But look whether she has access to be able to dress per her gender, wear makeup, take medication, etc.. Look for whether the process erected around her makes her detention degrading in a way that would not be endured by a non trans prisoner on remand.

    Article 14 (the right not to be discriminated against in relation to any of the rights contained in the European Convention) cannot be used on its’ own. It can only be claimed in conjunction with one of the other articles

    • Julian says:

      I think Article 3 here is unlikely to go anywhere – there is a minimum threshold for Art 3 to be engaged and it is much higher than you might think from the wording of the article. Article 8 – possibly with Article 14 parasitic upon it – on the other hand is a strong argument since the Admin Court held in AB v SSHD (Sept 2009) that a pre-operative trans woman’s Art 8 rights were breached by holding her in a men’s prison.

  4. Roz Kaveney says:

    Given that the press coverage describes Nina as ‘unshaven’ – this may of course just be a slur -there are grounds for regarding Article 3 as having been already breached since she was forced to appear in court in a way that humiliated her. I am sure that the prison authorities would try to claim that not allowing her access to a razor or tweezers or hot wax is a safety issue, but really? There is also the extent to which constantly outing her and putting issues around her genitalia etc in the public domain is deeply prejudicial of her right to a fair trial – jurors will be thinking about trans stuff instead of whether or not she killed Sonia.

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