R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40

A female life prisoner released on licence challenged the distribution of Approved Premises, arguing it forced women to live far from home unlike men. The Supreme Court held this constituted unjustified direct sex discrimination under the Equality Act 2010.

Facts

The appellant, a woman in her fifties who had lived in London for most of her adult life, was sentenced to life imprisonment in 2004 for murder. Upon release on licence in November 2015, she was required to reside in an Approved Premises (AP) in Bedford as a condition of her licence, separating her from her family in London.

Approved Premises (formerly probation/bail hostels) are now all single-sex establishments. There are 94 APs for men spread across England and Wales, but only six APs for women (in Bedford, Birmingham, Leeds, Liverpool, Preston and Reading), with none in London or Wales. The six women’s APs have a total capacity of 112 places. This geographical distribution means women required to live in an AP are far more likely than men to be placed far from their homes and families.

The appellant brought judicial review proceedings seeking declarations that the lack of a women’s AP in London was discriminatory under the Equality Act 2010 and/or articles 8 and 14 ECHR, and that the Secretary of State had breached the public sector equality duty under section 149.

Cranston J declared a breach of the public sector equality duty (unchallenged on appeal) but dismissed the discrimination claim. The Court of Appeal upheld that dismissal. The appellant appealed to the Supreme Court.

Issues

The principal issues were:

• Whether the current distribution of APs constitutes unlawful direct sex discrimination against women under section 13 of the Equality Act 2010;
• Whether, alternatively, it constitutes indirect discrimination under section 19;
• Whether any such discrimination is justified under paragraph 26 of Schedule 3 to the 2010 Act, which permits separate services for men and women in defined circumstances;
• What relief, if any, should be granted.

Arguments

Appellant

Ms Rose QC argued that being required to live in an AP far from home was a detriment, that women were much more likely than men to suffer this detriment because of the geographical distribution of APs, and that this constituted less favourable treatment because of sex. She relied on R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] 1 AC 1155 as directly analogous. She accepted that joint-sex APs would be less effective and that providing separate services was not reasonably practicable on an equal geographical footing, but contended that the Ministry of Justice had never properly considered alternative configurations and could not show proportionality.

Respondent

Mr Chamberlain QC argued that not all women suffered the detriment, so there could be no direct discrimination given the “exact correspondence” requirement discussed in Patmalniece and Preddy v Bull. The Secretary of State also relied on cost (£1.5-£2.2m to build an AP; £500,000-£750,000 annual running costs), community opposition, the under-use of female APs, and the short average stay of 80 days to justify the current provision.

Judgment

Lady Hale (with whom the other Justices agreed) allowed the appeal.

Direct discrimination established

The Court rejected the Secretary of State’s “exact correspondence” argument. That test applies only where the criterion used is not itself a protected characteristic but a proxy for one (as in Patmalniece or Preddy v Bull). Here, the criterion is sex itself. Furthermore, direct discrimination does not require that every member of the protected group suffer the detriment; in the Birmingham case some girls passed, just as in Essop v Home Office some BME candidates passed the assessment.

The Court found no valid distinction from Birmingham: all women required to live in an AP suffered a much greater risk than men of being placed far from home. The like-for-like comparison under section 23 was satisfied because the material circumstances (being offenders released on licence on condition of residing in an AP) were the same for men and women.

Paragraph 26 of Schedule 3

The Court held that paragraph 26(2) (“separate and different” services) applied, given the differing geographical distribution. The appellant accepted that a joint service would be less effective and that it was not reasonably practicable to provide women’s APs on the same basis as men’s. The decisive question was proportionality.

While saving costs is a legitimate aim, citing O’Brien v Ministry of Justice, the Court held that

“budgetary considerations cannot justify discrimination”

— any cost limitation must operate in a non-discriminatory way. There was no evidential finding supporting the alternative aim of ensuring similarly appointed premises. Crucially, because Cranston J had found (unchallenged) that the Secretary of State had breached the public sector equality duty by not properly assessing impacts on women, the Ministry could not now demonstrate that the current distribution was a proportionate means of achieving a legitimate aim. Alternative options (smaller, more widely-distributed APs; relocating existing APs; redesignating premises; alternative forms of accommodation) had not been properly considered.

Indirect discrimination

Lady Hale held that conduct cannot simultaneously be both direct and indirect discrimination, and that the finding of direct discrimination ruled out an indirect discrimination analysis. In any event, “shoe-horning” the complaint into indirect discrimination did not work because the PCP (the requirement to reside in an AP) was readily justifiable by reference to public protection and rehabilitation.

Relief

The Court granted a declaration that the provision of Approved Premises in England and Wales pursuant to section 2 of the Offender Management Act 2007 constitutes direct discrimination against women contrary to section 13(1) of the Equality Act 2010, which is unlawful unless justified under paragraph 26 of Schedule 3, and that no such justification had yet been shown by the Secretary of State.

Implications

The decision confirms several important points in equality law:

• The “exact correspondence” requirement in direct discrimination only applies where the criterion is a proxy for a protected characteristic, not where the criterion is the protected characteristic itself.
• Direct discrimination does not require that every member of the protected group suffers the detriment; it is enough that members of that group are at greater risk of suffering it.
• Comparators under section 23 should focus on the material extrinsic circumstances rather than intrinsic differences between the sexes.
• Paragraph 26 of Schedule 3 permits separate single-sex services, but the limited provision must still satisfy proportionality, and budgetary considerations alone cannot justify discrimination.
• A breach of the public sector equality duty under section 149 may undermine the State’s ability to demonstrate proportionality, because without proper assessment of impacts there is no evidential basis on which justification can be established.

Practically, the decision opens the way for individual women required to live in distant APs to bring discrimination claims in the county court, with the Secretary of State bearing the burden of justifying the provision in each case. The judgment is significant in the context of long-standing concerns (going back to the Corston Report and the 2008 Joint Inspection Report) about how women are treated within a criminal justice system “largely designed by men for men”. It demonstrates that even gender-neutral or apparently protective single-sex policies must be tested against the proportionality requirement and that historical or resource-driven configurations cannot be insulated from equality scrutiny.

The Court was careful, however, not to determine that the present provision is necessarily unlawful in substance — only that justification has not yet been demonstrated. The Secretary of State retains the opportunity to justify the provision if and when claims are brought, provided that a proper equality impact assessment is undertaken.

Verdict: Appeal allowed. The Supreme Court granted a declaration that the provision of Approved Premises in England and Wales by the Secretary of State pursuant to section 2 of the Offender Management Act 2007 constitutes direct discrimination against women contrary to section 13(1) of the Equality Act 2010, which is unlawful unless justified under paragraph 26 of Schedule 3 to the 2010 Act, and that no such justification had yet been shown by the Secretary of State.

Source: R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40