Coll v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Sharp,THE MASTER OF THE ROLLS |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWCA Civ 328 |
| Docket Number | Case No: C1/2014/0269/QBACF / C1/2014/0269(A)/FC3 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 2015 |
[2015] EWCA Civ 328
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court, QBD, Administrative Court
Mr Justice Cranston
CO3842013
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Elias
And
Lady Justice Sharp
Case No: C1/2014/0269/QBACF / C1/2014/0269(A)/FC3
Ms. Dinah Rose QC (instructed by Messrs Lound Mulrenan Jefferies Solicitors) for the Appellant
Mr. Oliver Sanders (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 4 March 2015
Introduction
When potentially dangerous criminals are released from custody, they may be required as a condition of the licence to reside in premises known as "Approved Premises" (APs). These are defined in probation circular 37/2005 as:
"a criminal justice facility where offenders reside for the purposes of assessment, supervision and management in the interests of protecting the public, reducing reoffending and promoting rehabilitation".
The regime provided in APs is relatively strict and disciplined, imposing for example, curfew hours, and with extensive security measures. Residents can be required to undertake purposeful activities which form part of their supervision plan. A requirement to undergo the enhanced supervision and discipline which living in the AP requires can only be imposed where it is a necessary and proportionate means of managing risk. As Cranston J put it below (para 9):
"The core purpose of approved premises is the provision of enhanced supervision as a contribution to the management of those who pose a high or very high risk of harm to the public. The purpose of approved premises is not the provision of residential accommodation for its own sake but residence is an integral feature of the enhanced supervision and risk management offered…"
All APs are now single sex institutions although there were some mixed APs until relatively recently. There are now ninety-four male APs located throughout England and Wales in major population centres (although there are none in Wiltshire or Hertfordshire). By contrast there are only six female APs and in many parts of the country, including London and Wales, there are none. Their location is not the result of considered planning, however. It has been a random development. Cranston J described how the current configuration came about (para. 15):
"The estate of approved premises has grown over a number of decades in a piecemeal fashion, from a combination of remand homes, former residential homes, decommissioned public buildings and charitable gifts."
He also pointed out that planning permission for new premises can be difficult to obtain. There is typically local opposition arising from a perception that APs increase the risk of harm in the neighbourhood.
There is a presumption that offenders should if possible be placed in APs as close as possible to their home probation area. There are exceptions to this principle. For example, sometimes it is thought inappropriate because it would place the prisoner in the vicinity of his or her victim. Also, in the case of female prisoners in particular, there is concern that they may be adversely affected by returning to their community if they have been in an abusive relationship or have been subject to a controlling partner. In such cases placements away from the offender's area will be desirable.
Placements in APs are generally for a short period of time. In 2012–2013 the average period was eighty days. In general, offenders will prefer to be near their homes because it enables closer contact with family and friends and may assist in securing employment once they are released fully back into the community.
However, whilst a placement close to home is a realistic objective for most male prisoners, it is not achievable for female prisoners because of the limited number of APs made available for them. There is no different policy applied to women but the lower demand for places in an AP limits their number.
Not all residents in APs are prisoners on licence. There are also some persons on bail or serving a community sentence. However, 90% of male residents are prisoners on licence and 80% of women residents fall into that category. The usual criterion for licensed prisoners is that the prisoner poses a high or very high risk of harm to the public. This has been relaxed in the case of women to allow accommodation for more vulnerable cases in certain circumstances. In fact only about one half of women residents fall into the high or very high risk category.
In 2013 the six female approved premises had a total capacity of 112 places and an annual overall occupancy of just over 80%. That compared with 94% for male approved premises. The capacity and occupancy rates of each female AP were as follows: Liverpool (16), 91.5%; Bedford (17), 89.9%; Birmingham (20), 82.5%; Preston (12), 79.3%; Reading (22), 70.7%; and Leeds (25), 75.1%.
The appellant, Ms Coll, is herself serving a mandatory life sentence for murder and is currently held at Her Majesty's Prison Askham Grange. She had a previous conviction for manslaughter in 1997. A probation report in 2012 indicated that she may be suitable to reside in an AP or supported housing when she is released from custody. Since she is serving a mandatory life sentence for murder, her release will not take place until the Parole Board considers that it is appropriate to release her. In my view it must be unlikely that she will subsequently be sent to an AP not least because the Parole Board is unlikely to release a prisoner who remains a significant risk to the public, and typically lower than the risk required for release into an AP. The Judge below held that this uncertainty, coupled with the fact that she was still some time away from likely release, meant that she did not have standing to mount a judicial review challenge to the policy. I see the force of that conclusion but the Secretary of State is not now disputing her lack of standing and therefore I would not dismiss the application on this basis. What is accepted, however, is that she cannot demonstrate that she has personally been subject to any discrimination of the kind alleged in the application, and it is likely that she will never be able to do so.
The appellant complains that women have been the subject of unlawful sex discrimination as a result of the arrangements for placing prisoners in APs. The basis of the claim is that the configuration of APs means that it is necessarily and inevitably harder to place women close to their home than men. This is said to be both direct and indirect discrimination. Ms Rose QC, counsel for the appellant, submits that it matters not how it is described since she accepts that even if it is direct discrimination, it is one of those relatively unusual cases where such discrimination can in principle be justified. So it matters not whether the proper analysis is direct or indirect discrimination, either way a justification defence is in principle available and the critical question is whether it is applicable here. Her case is that the onus is on the Secretary of State to justify, and he has not provided any relevant evidence to sustain that defence here.
Mr Justice Cranston rejected these submissions. He did not think there was any discrimination either direct or indirect; and even if there had been, he considered that it would have been justified. He did, however, uphold a separate contention that the Secretary of State was in breach of the public sector equality duty contained in section 149 of the Equality Act 2010. The Judge summarised what compliance with that duty would require in the circumstances of this case in paragraph 65 of his decision:
"What is required is that he address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it. In the context of advancing equality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women having regard to their particular circumstances. Nothing even approaching this has been done."
That finding of the Judge has not been challenged on appeal.
The legislation
Section 2 of the Offender Management Act 2007 ("the 2007 Act") makes the Secretary of State responsible for ensuring that sufficient provision is made throughout England and Wales for probation purposes: s. 2(1)(a). "Probation purposes" are defined in section 1 of the 2007 Act to include "the supervision and rehabilitation of persons charged with or convicted of offences": s 1(1)(c). Those purposes include, in particular, assisting in the rehabilitation of offenders being held in prison, supervising persons released from prison on licence, and providing accommodation in APs: s.1(2)(b)-(d).
In discharging his functions in relation to the provision of probation services, the Secretary of State must have regard to certain aims. These include the protection of the public, the reduction of re-offending and the rehabilitation of offenders: s. 2(4) (a),(b) and (e).
Section 13 deals specifically with the approval of premises for probation purposes. It provides that:
"(1) The Secretary of State may approve premises in which accommodation is provided-…
(b) for, or in connection with, the supervision or rehabilitation of persons convicted of offences."
Under Section 13(3) the Secretary of State may make payments in connection with the operation, construction or renovation...
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