Trans criminals with history of violence ‘will be sent to women’s prisons’

Angela Constance on the way to Topical Questions in the Scottish Parliament, where she was questioned on the Scottish Government's plans for juryless trials, on May 2, 2023
Angela Constance, the SNP’s justice secretary, unveiled the controversial new policy - Ken Jack/Getty Images

Trans criminals with a history of violence against women can serve their sentences in female prison in Scotland if there is “compelling” evidence they do not pose “an unacceptable risk of harm”, under a controversial new policy.

The Scottish Prison Service (SPS) unveiled a new protocol stating that they would “not be eligible to be considered for admission or transfer to a women’s prison” if they had been convicted, or were awaiting trial or sentencing for a series of crimes.

These included any offences that “perpetrate violence against a female that results in physical, sexual, or psychological harm”, such as murder, rape, culpable homicide, sexual harassment and commercial sexual exploitation.

But the policy said a trans criminal who committed such a crime against a woman could still be transferred to a female prison if a “risk management team” and “executive panel” approve the decision.

For this to happen, the protocol said the authorities must be “satisfied there is compelling evidence that they do not present an unacceptable risk of harm to those in the women’s prison.”

The policy also said that criminals that identify as women would have their “corresponding name and pronouns … respected” even if they are serving their sentences in a male prison. It will come into force on Feb 26 next year.

‘Eroding rights’ to single-sex space

Angela Constance, the SNP’s justice secretary, argued that the new protocol would protect staff and inmates, while respecting the rights of trans people.

But women’s rights campaigners and the Tories said the new policy drastically watered down protections in the previous protocol, introduced following the Isla Bryson scandal earlier this year.

In a major change of strategy, after the transgender rapist was initially placed in a female prison, the SNP announced in February that it would base decisions on where to send new prisoners entirely on their biological sex.

Keith Brown, Ms Constance’s predecessor, said at the time that those already in the prison system would be barred from being transferred to a female jail if they have “any history of violence against women – including sexual offences”.

Russell Findlay, the Scottish Tories’ shadow justice secretary, said: “These long-overdue new guidelines actually put women at even greater risk by further eroding their fundamental right to single-sex space.

“They say that male prisoners with a history of violence against women or girls should be allowed in the female estate and will only be blocked if they present a risk, which is completely subjective. This is clearly unacceptable – and SNP ministers need to go back to the drawing board.”

Marion Calder, director of campaign group For Women Scotland, warned the new policy would “open the floodgates” for male-bodied criminals being admitted to women’s prisons.

She said: “It’s a worse system than we currently have. The point of this review was meant to be to consider women in the prison estate.”

The SPS said the tougher policies introduced in the wake of the Bryson scandal would remain in place until February and the new protocol followed “extensive engagement” with experts, prisoners and staff.

Tess Medhurt, the prison service’s chief executive, said: “Every single individual in the care of SPS is treated with dignity and respect, with their rights upheld, and any risks carefully managed.

“Our staff have an excellent track record in working with our transgender population, and I know that will continue under this new policy.”

Ms Constance said: “This updated policy protects the safety and welfare of staff, those in their care and the rights of transgender people.

“It makes clear that if a transgender woman meets the service’s violence against women and girls criteria they will be admitted and accommodated in the male estate.”

The new policy will come into force on Feb 26 “to allow for all necessary training and planning to be put in place”.