R v McNally case review

R v McNally

The brief facts of R v McNally were as follows: Justine McNally was born with female genitalia but wanted gender reassignment surgery to become physiologically male. McNally communicated online with the complainant for more than three years. Whilst online McNally used a male avatar, presented herself as male and talked about having a romantic future, marriage and family with the complainant. The complainant and McNally engaged in sexual conversations, over the phone, which included McNally telling the complainant she would ‘put it in’ which the complainant took to mean McNally’s penis. When McNally first met the complainant in person, she was dressed in male clothes and was wearing a strap-on dildo under her trousers. The complainant and McNally went on to meet on four occasions. During two of those meetings, McNally penetrated the complainant’s vagina digitally and orally. On one of those occasions, McNally and the complainant were in a dark bedroom when McNally rubbed the complainant’s vagina and performed an oral sex act upon her, McNally then retrieved condoms that she had purchased with the intention of having sexual intercourse. The complainant alleged that her vagina was penetrated with a dildo but this count was left to lie on the file before the case reached the Court of Appeal. When all of these sexual acts took place McNally was 17 years old and the complainant was 16.

In December 2012, at the Crown Court, McNally pleaded guilty to six counts of assault by penetration and the further allegation involving penetration with a dildo was ordered to remain on the file. McNally was sentenced to three years’ imprisonment in a young offender institution and a restraining order was granted against McNally for the protection of the complainant and the complainant’s mother. In 2013, McNally appealed her conviction and sentence to the Court of Appeal.

The Court of Appeal dismissed her appeal against her conviction but reduced her sentence from 3 years to 9 months’ detention in a young offender institution suspended for 2 years and granted a 2-year supervision order. McNally appealed her conviction on three grounds:[1]

 (1) that her legal advisers failed to advise her correctly on matters that went to the heart of her plea; because

(2) the elements of the offence were not made out and she could not have been convicted; with the result that

(3) her plea was equivocal.

The key ground to consider for the purpose of this report is ground (2).

The Court of Appeal affirmed that ‘depending on the circumstances deception as to gender can vitiate consent.’[2] The Court of Appeal explained that, physically, assault by penetration of the vagina is the same whether committed by a male or female. However, the sexual nature of the penetration is different ‘where the complainant is deliberately deceived by a defendant into believing that the latter is a male.’[3] On this rationale, the Court of Appeal explained that the complainant’s choice ‘to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant's deception.’[4] If a transgender defendant’s deception as to their gender removes the complainant’s ability to use their own freedom and capacity to consent to engaging in sexual activity then the complainant’s consent is vitiated.

With regards to sentencing, the Court of Appeal found that: McNally did not abuse the trust of the complainant and therefore ‘the starting point set out in the guideline for an offence involving penetration with a body part, committed when a victim is 16 years old or over is two years’ imprisonment with a range of one to four years.’ [5] The Court of Appeal went on to find that the context and personal circumstances of McNally, including self-harm and confusion over her gender identity and sexuality, demonstrated ‘features of mitigation.’[6] This led the Court of Appeal to sentence McNally to ‘a sentence of nine months in a young offender institution, suspended for a period of two years, together with a suspended sentence supervision order also extending for two years.’[7] The rationale for this was that although, the custody threshold had been exceeded, McNally had served just under three months of a custodial sentence imposed by the Crown Court. The Court of Appeal explained that the new sentence would allow McNally ‘to receive the help that she so clearly needs.’[8]

Deception and gender identity

In cases where a transgender defendant has deceived a complainant as to their gender identity, a clear understanding of gender identity and gender dysphoria is needed. Gender dysphoria is ‘a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity.’[9] The key question, in sexual offence cases where a transgender defendant has deceived a complainant as to their gender, is: how can one accuse a transgender defendant of being deceptive in a case where they have merely portrayed the gender identity that they believe is their true gender identity?

Article 8 ECHR

The key right engaged in these cases is article 8 ECHR.[10] Sharpe argues that transgender people should not have to reveal their gender history in order to engage in consensual sexual activity. Consequently, it could be argued that to convict a transgender person of a sexual offence because they did not reveal their gender history could breach their article 8 ECHR rights.[11] Sharpe explains that coupling transgenderism with impersonation, and therefore fraud is ‘to misunderstand the phenomenon of transgender and its ontology. It is also to overlook the fact that the state recognises "gender dysphoria", provides state funded medical treatment for this "condition" as well as a mechanism for legal recognition of gender identity.’ [12]

The conclusion to draw from this is that barristers must be able to question transgender defendants in a way which gets to the root of the defendant’s gender identity and any deception that took place in the case. In order for a transgender defendant to be convicted due to their deception of a complainant, the jury must be convinced that the defendant’s deception vitiated the complainant’s consent by removing the complainant’s ability to decide whether or not to engage in sexual activity with a person of the gender of their choice.

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[1] R v McNally [2013] EWCA Crim 1051 [13]

[2] Ibid [27]

[3] Ibid [26]

[4] Ibid

[5] Ibid [51]

[6] Ibid [51]

[7] Ibid [52]

[8] Ibid [52]

[9] ‘Gender Dysphoria’ http://www.nhs.uk/conditions/gender-dysphoria/Pages/Introduction.aspx (last visited 04/01/17)

[10] European Convention of Human Rights article 8

[11] Sharpe ‘Criminalising sexual intimacy: transgender defendants and the legal construction of non-consent’ (2014) CLR

[12] Ibid p5

Making big decisions

Dear Readers,

As many of you will know, in order to take my position at Age UK, I decided to decline a very lucrative offer from a huge global consultancy firm. At the time, many of my colleagues, trusted friends and esteemed mentors, told me I must be mad. Now (maybe it is blind ignorance, stupidity or sheer willpower) but I still maintain that I made the right decision.

For any of you who are fortunate enough to have multiple job offers/ offers from companies that most people who deem 'career changing' I urge you to make your decision after you have answered the following questions.

1. Will I be able to pay the bills/ save for a mortgage/ pay rent etc if I take this job? This may sound obvious, however it is important to remember that being financially responsible and understanding the impact of your new role on your personal plans is key. For me, covering my rent and bills was all I needed to ensure I made the right decision. Things can get hard when you reject a financially lucrative role however for me, this came down to something closer to my soul. My desire to work to live rather than live to work.

2. Will I be comfortable in this role? Again, for me, this was crucial. Both roles had lovely offices, brilliant staff and fantastic job descriptions. I decided to go for the charity sector as I knew what I wanted to achieve and I felt that I was 'one of the team' right from the initial interview. The consultancy, we shall call X Ltd, had fantastic staff and were very welcoming but as I scratched the surface it was clear that they also had major communication issues, internal conflicts and brand image issues. For me, this was enough to show me that I needed to ignore the financial offer, the boost my career could gain from the role and follow my gut to go where I needed to be at this point in my career and life.

3. Is taking this role my choice? The final point that cemented my decision, was my realisation that had I taken the consultancy role, I was really taking it just to please everyone else. To me, X Ltd represented success, breaking the glass ceiling and proving any doubters wrong. That may seem ideal but really it also represented, giving in, making myself work to make others happy and even as a young professional, I was not ready to sell my soul.

For any of you out there who are lucky enough to be making these choices, I am not trying to convince you to avoid the big players in the global markets. I urge you to follow the words of my late Nan and 'never let anyone oppress you.'

As ever, if any of you have any questions, please feel free to get in touch.

K

Transgender and in prison

Transgender and in prison

This article covers 4 key areas:

1.    the segregation of female to male transgender defendants in male prisons and the article 8 ECHR issues that this gives rise to;

2.    the risk of violent and sexual offences being committed against male to female transgender defendants when they are sent to male prisons;

3.    the questions that criminal practitioners need to ask their transgender clients who are serving terms of imprisonment; and

4.    the remedies available to transgender inmates who are segregated or attacked whilst in prison.

Segregation of female to male transgender prisoners in male prisons

In this section, I will use the term ‘male to female transgender person’ to describe someone who was born physiologically male and wants to have gender reassignment surgery to become physiologically female.

The key case that looks at this issue is R (on the application of AB) v Secretary of State for Justice and another.[1]AB was a male to female transgender person who had attempted to rape a female stranger and committed manslaughter of her male partner. AB was physiologically male but wanted gender reassignment surgery. AB was legally recognised as female on the basis that she had been awarded a section 9 GRA, GRC, but in order to be allowed to have gender reassignment surgery she was required to live as a woman for 2 years in a female prison.[2] As part of her sentence, AB was imprisoned in a male prison. When the Secretary of State refused to move her to a female prison, she was instead kept as a segregated inmate in a male prison. This segregation included more onerous segregation conditions than she would have been under in a female prison because it included restrictions on what types of female clothes and make up she could wear when outside of her cell.[3]AB sought judicial review against the Secretary of State for Justice and the Governor of HMP Manchester to challenge the decision of the Secretary of State to imprison her in a male prison and not to transfer her to a female prison.[4]

The Queen’s Bench Division of the Administrative Court found that this breached AB’s article 8 ECHR right to a private life.[5] The Court found that AB’s rights were sufficiently precise and significant to engage article 8 of the Convention and that the interference with AB’s autonomy was a significant and personal one. The Court found that the interference went to the heart of AB’s identity as a transgender woman and that this was acknowledged by the Secretary of State in recognising that AB should be entitled to proceed with the process of gender reassignment. Therefore, AB’s article 8 rights had been breached and it was for the Secretary of State to justify why that interference was proportionate.[6] The Secretary of State argued that due to lack of resources, moving AB to a female prison would be too expensive and that in any event she would likely be in segregation in a female prison whilst she adapted to her new surroundings.[7]

The Court went on to find that the decision to keep AB segregated in a male prison was not in accordance with the law and that the Secretary of State had failed to consider certain relevant issues including the effect, on AB, of continued detention in a male prison. The Court found that the Secretary of State had failed to consider the cost of not transferring AB to a female prison and the possibility that the period of AB’s segregation in a female prison may not be very long.[8]The Court found that preventing AB from being transferred to a female prison was likely to frustrate her and lead to an increase in her risk profile.[9]

The risk of transgender defendants suffering physical and sexual violence in male prisons

The key point to note in cases where a male to female transgender defendant is being sent to a male prison is the importance of sending the defendant to a prison that matches their psychological but not necessarily their physiological gender. Edney[10] argues that male to female transgender defendants who are sent to male prisons on the basis that they are physiologically male, despite wanting gender reassignment surgery to become physiologically female, are at greater risk of sexual violence in prison. It is known that, in male prisons, threats of rape and sexual assault are used to intimidate and dominate other inmates. Youthful inmates, feminine inmates and physically weak or homosexual males are targeted disproportionately. Therefore, sending male to female transgender inmates to male prisons puts them at risk of sexual and physical violence. Additionally, segregating transgender inmates for their own protection puts them in more onerous conditions than the general prison population and therefore they are disproportionately punished. Edney summarises his research on this topic by explaining that the consequences for transgender people of a prison system that does not incorporate their concerns are significant and include high levels of sexual and physical violence and medical treatment that’s quality and suitability is arbitrarily dependent on the prison which they are being sent to.

Whilst Edney’s research focused on the American prison system, there is very little UK focused academic literature on this issue. What is evident is that violent and sexual attacks on transgender inmates in UK prisons are happening.[11] If you discover that your male to female transgender client is being attacked or segregated there are a number of steps you can take:

·         If your client has been remanded in custody or given a custodial sentence, you can make representations about what is happening to your client and why they should be transferred to another prison. These representations can be made orally or in writing to the governor of the prison.

·         Make representations at the sentencing hearing as to which prisons would be suitable for your client i.e. female prisons and prisons where hormone treatments would be available;

When working with transgender defendants who are being sent to prison, the questions that need to be asked are as follows:

What gender does the transgender defendant identify as?

This will affect the medical and psychological needs of the defendant. Also if they are physiologically male but identify as female, sending them to a male prison may lead to the article 8 ECHR issues outlined above.

Will they be segregated due to their transgender identity?

If the answer is yes, you need to consider whether this will breach their article 8 ECHR rights and also whether this will amount to disproportionate and discriminatory punishment. You should consider the possibility of segregation in the prison that your client may be moved to and the conditions that could be placed on them there as well as in their current prison.

What medical treatment will they need in prison in order to make their gender transition and what therapy will they need to supplement the aforementioned medical treatment?

The answer to this question will help the court send your client to a prison with the requisite healthcare facilities and therapy for their specific needs. These may include: hormone treatment, laser hair removal, counselling and gender reassignment surgery.

Remedies

To remedy the issues above you will need to consider the possibility of complaining to prison governors by making written or oral representations on your transgender client’s behalf. You could then consider making a judicial review application if needed. For more information on this issue you should consult the 2016 Ministry of Justice: ‘Review of the Care and management of Transgender Offenders’ report.[12]

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[1] R (on the application of AB) v Secretary of State for Justice and another [2009] EWHC 2220 (Admin)

[2] Ibid [7]

[3] Ibid [5]

[4] Ibid [1]

[5] Supra 14

[6]  Supra 39 [53]

[7] Ibid [9] and [60]

[8] Ibid [73]

[9] Ibid [56]-[78]

[10] Edney, ‘To keep me safe from harm – transgender prisoners and the experience of imprisonment’ 9 Deakin L. Rev. 327 (2004]

[11] ‘Transgender prisoner at all male jail slashed across the face’ http://metro.co.uk/2016/10/24/transgender-prisoner-slashed-across-the-face-in-transphobic-attack-6212067/  (last visited 07/12/16)

‘Placing a transgender woman in a men’s prison is a cruel punishment’ http://www.independent.co.uk/voices/comment/paris-lee-placing-a-trans-woman-in-a-mens-prison-is-a-cruel-and-unusual-punishment-a6923831.html (last visited 07/12/16)

 ‘Transgender woman held in UK men's prison raped twice and tried to castrate self’ http://www.sundayworld.com/news/crime-world/transgender-woman-in-uk-mens-prison-feels-destroyed (last visited 07/12/16)

[12] ‘Review on the Care and Management of Transgender Offenders’   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/566828/transgender-review-findings-web.PDF  (last visited 18/12/2016)

Working after the BPTC

Dear Readers,

Thank you so much for your ongoing support since my last post. As some of you know, I have been working at Age UK as a Policy & Research Officer/ Campaigns Support Officer and then as a freelance Tutor.

I think for aspiring Barristers, post BPTC working, should revolve around 3 questions:

1. Does this role make me a better Barrister?
2. Will this role make me stand out?
3. Does this role make me feel like I am contributing to a charity/ company/ cause?


For me, working at Age UK was an easy choice. The work was heavily law-based, I gained experience speaking to Parliamentarians, Government Officials, Lawyers and Service Users. It also helped me go back to the real reason I ever pursued law in the first place, to represent the underrepresented. Working with older people, carers, people living with dementia and the government, taught me to be humble, to remember why the law is so important and to always centre my advice, policy recommendations and research around the people who will be affected by the decisions I am trying to influence. On a personal level I learnt where my value lies: in my ability to understand the real life impact of complex legal issues. 

As some of you will know, my choice to join Age UK also involved my rejection of a very well known 'Big 4' consultancy. Here, now, after I have completed my contract at Age UK and accepted my next challenge, I still have no regrets. I am hoping to blog about that decision as well as my tutoring business very soon.

Thanks again for all of your messages of support and encouragement!


K