R and Others v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 03 July 2012 |
| Neutral Citation | [2012] EWHC 1810 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 July 2012 |
| Docket Number | Case No: CO/10675/2011 & CO/10573/2011 |
[2012] EWHC 1810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: CO/10675/2011 & CO/10573/2011
Ms Kate Markus (instructed by Scott Moncrieff & Associates) for the First Claimant
Mr Hugh Southey QC (instructed by Prisoners Advice Service) for the Second Claimant
Mr Jonathan Auburn (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 9-10/5/12
Introduction
There are before the Court two claims for judicial review of two Prison Service Instructions issued by the Secretary of State for Justice ("the Secretary of State") to governors of prisons regarding the exercise by them of discretion regarding the imposition of deductions from earnings by prisoners working for private employers on release schemes outside prison, to raise funds to be paid to Victim Support, a body providing support for victims of crime. The first Instruction under challenge is PSI 48/2011 issued on 4 August 2011 and taking effect from 8 August 2011. The second Instruction under challenge is PSI 76/2011 issued on 20 December 2011 and coming into force to replace PSI 48/2011 with effect from 1 January 2012.
The first claim is brought by S, who is a male prisoner aged 40. He is in an open prison serving an indeterminate prison sentence. He has had a full-time job with a private employer doing manual work outside the prison since June 2011. At the hearing, he was represented by Ms Markus, who submits that PSI 48/2011 was unlawful and PSI 76/2011 is unlawful on the grounds that they violate Article 1 of Protocol 1 ("A1P1", protection of property) to the European Convention on Human Rights ("the ECHR"), as incorporated into domestic law under the Human Rights Act 1998 ("the HRA").
The second claim is brought by KF, who is a female prisoner with an unspecified number of children. She is in an open prison. She is serving a sentence of four years. Her release date is 9 August 2012. She attends college on release from prison for two days a week, so could only work part time if she was able to find work outside prison. She says she has decided not to seek work outside prison because of the possible impact on her of the levy, travel costs and such like (it seems that she has not approached the governor of her prison to see if any relief from the levy might be granted in the particular circumstances of her case). At the hearing she was represented by Mr Southey QC, who submits that PSI 48/2011 was unlawful and PSI 76/2011 is unlawful on the grounds that they violate A1P1 (relying in that regard on the submissions made by Ms Markus on behalf of S) and also on the grounds that they violate Article 7 (no punishment without law) and Article 14 (prohibition of discrimination) of the ECHR. He submits that they violate Article 7 because they have the effect of imposing a heavier penalty than the one applicable at the time KF's criminal offence was committed. He submits that they violate Article 14 because, although on their face they are applicable equally to men and women in prison, they in practice have an excessive and disproportionate detrimental impact on women and so involve unlawful indirect discrimination contrary to Article 14. In support of that submission he placed particular reliance on DH v Czech Republic (2008) 47 EHRR 3, GC. He also submits that the Instructions were and are unlawful because they were issued by the Secretary of State without his having due regard to the need to promote equality for women, as he was obliged to do under section 149 of the Equality Act 2010.
S and KF were substituted late on in the proceedings for other claimants. The Secretary of State agreed to this, because the intention was that there should be suitable test cases for challenging the lawfulness of the two Prison Service Instructions.
The legal framework and the promulgation of the Prison Service Instructions
The Prisoners Earnings Act 1996 ("the PEA") makes provision allowing for introduction of a regime governing deductions from prisoners' earnings. The Act did not come into force upon enactment. It was only commenced in 2011.
Section 1 provides:
" 1. —Power to make deductions and impose levies.
(1) This section applies where—
(a) a prisoner is paid for enhanced wages work done by him; and
(b) his net weekly earnings in respect of the work exceed such amount as may be prescribed.
(2) Where the prisoner's net weekly earnings fall to be paid by the governor on behalf of the Secretary of State, the governor may make a deduction from those earnings of an amount not exceeding the prescribed percentage of the excess.
(3) Where those earnings fall to be paid otherwise than as mentioned in subsection (2) above, the governor may impose a levy on those earnings of an amount not exceeding that percentage of the excess.
(4) In this section—
"enhanced wages work", in relation to a prisoner, means any work—
(a) which is not directed work, that is to say, work which he is directed to do in pursuance of prison rules; and
(b) to which the rates of pay and productivity applicable are higher than those that would be applicable if it were directed work;
"net weekly earnings" means weekly earnings after deduction of such of the following as are applicable, namely—
(a) income tax;
(b) national insurance contributions;
(c) payments required to be made by an order of a court; and
(d) payments required to be made by virtue of a maintenance calculation 1 within the meaning of the Child Support Act 1991. …"
For the purposes of the PEA, "prescribed" means prescribed in the Prison Rules: section 4(2). The challenges in the present proceedings involve prisoners who undertake enhanced wages work for private employers. The relevant sub-section of section 1 is therefore sub-section (3), which provides that the prison governor in each case may impose a levy up to a level specified as prescribed in the Prison Rules.
Section 2(1) of the PEA provides:
" 2. —Application of amounts deducted or levied.
(1) Amounts deducted or levied under section 1 above shall be applied, in such proportions as may be prescribed, for the following purposes, namely—
(a) the making of payments (directly or indirectly) to such voluntary organisations concerned with victim support or crime prevention or both as may be prescribed;
(b) the making of payments into the Consolidated Fund with a view to contributing towards the cost of the prisoner's upkeep;
(c) the making of payments to or in respect of such persons (if any) as may be determined by the governor to be dependants of the prisoner in such proportions as may be so determined; and
(d) the making of payments into an investment account of a prescribed description with a view to capital and interest being held for the benefit of the prisoner on such terms as may be prescribed."
Before the PEA was brought into effect, careful consideration was given within the Ministry of Justice to the question whether the Act should be activated and, if it was, what levy regime should be introduced pursuant to it. This culminated in a paper dated 27 July 2010 by Simon Greenwood of the Offender Safety, Rights and Responsibilities Group of the National Offender Management Service which set out proposals drawn up in light of information gathered from a number of prisons. The priority for Ministers was provision for victim support (section 2(1)(a) of the PEA). There would be significant administrative costs associated with implementation of a regime under the PEA, so it was important to keep it as simple as possible, leading to the recommendation that it should be limited to providing victim support and that funds raised should not be split amongst a number of different objectives. The paper noted that care should be taken not to dis-incentivise prisoners from working, whilst also seeking to generate sufficient revenue to make the exercise worthwhile in policy terms. After proposing a threshold of about £20 a week, the paper stated: "An appropriate balance might suggest a figure of 40% for all eligible prisoners".
In December 2010 the Government issued a Green Paper entitled "Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders" which addressed a wide range of proposals, of which activation of the PEA was one. An initial equality screening of the potential impacts of those policy proposals was published along with the Green Paper, and questionnaires about this were sent to a range of persons and bodies with an interest in treatment of prisoners. The discussion in the initial equality screening in relation to the PEA was limited, since it was one proposal among many and the proposal was at a high level of abstraction—the specific proposals for the detailed regime in rule 31A of the Prison Rules and the Prison Service Instructions only came later. The document included statistics about the breakdown of the prison population; pointed out that men are disproportionately represented in custody compared to the national population and that there is more capacity in the prison estate for men to work in prisons than women; and so observed that there would be the potential for a disproportionate impact of the implementation of the PEA in relation to gender, which would be considered as the policy was developed in more detail.
Very little was said about the activation of the PEA by persons responding to the equality questionnaires in respect of the Green...
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