R (on the application of Coll) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Clarke,Lord Wilson,Lord Hodge,Lord Toulson |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] UKSC 40 |
| Date | 24 May 2017 |
| Court | Supreme Court |
[2017] UKSC 40
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Hodge
Lord Toulson
Appellant
Dinah Rose QC
Iain Steele
(Instructed by Lound, Mulrenan and Jefferies Solicitors)
Respondent
Martin Chamberlain QC
Oliver Sanders QC
Katherine Apps
(Instructed by The Government Legal Department)
Intervener (The Howard League for Penal Reform)
Henrietta Hill QC
Sally Ireland
Ruth Brander
(Instructed by Clifford Chance LLP)
Heard on 21 February 2017
( with whom Lord Clarke, Lord Wilson, Lord Hodge and Lord Toulson agree)
"Approved premises" ("APs") used to be known as probation hostels and bail hostels. Living there may be made a condition of release on licence for certain medium, high or very high risk prisoners. They are now all single sex establishments. There are 94 APs for men, scattered about England and Wales, with several in London. There are only six APs for women, in Bedford, Birmingham, Leeds, Liverpool, Preston and Reading, and none in London or in Wales. This means that women are far more likely than men to be placed in an AP which is some distance from their homes and communities. The issue in this appeal is whether the current distribution of APs constitutes unlawful sex discrimination against women.
This issue arises in the context of a long-standing concern that the prison system is "largely designed by men for men" and that women have been marginalised within it ( The Corston Report, A Report by Baroness Jean Corston of a Review of Women with Particular Vulnerabilities in the Criminal Justice System, Home Office, 2007, para 4). This is scarcely surprising, as women constitute only 5% of the prison population and the system is struggling to cope with the ever-increasing demands made upon it. Many voices have been raised in support of Baroness Corston's call for a "radical change in the way we treat women throughout the criminal justice system", among them the Howard League for Penal Reform, who have intervened in this appeal to emphasise the particular difficulties which women face in the criminal justice system, including the problems of re-settlement with which we are concerned.
Those concerns are well understood. But the issue for this court is not whether the criminal justice system should be making better provision for women. The issue is whether the provision that it does make is, in one particular respect, unlawfully discriminatory. It is quite possible that the answer to be given to the first question is "yes", while the answer to be given to the second question is "no".
The appellant is now in her fifties. She has lived in London for almost the whole of her adult life and has no significant ties with Sunderland, where she spent her childhood, or anywhere else. She has two children in their twenties and two young grandchildren. In August 2004 she was sentenced to life imprisonment for murder, with a tariff of 11 years and three months. She was imprisoned first in HMP Holloway, where her family were able to visit; then in HMP Send near Woking, where they did not visit; and then in Askham Grange open prison near York in 2013. She has been assessed as presenting a medium risk of harm. Her tariff expired in November 2015, nearly two years after these proceedings were begun. She has since been released on licence. As a condition of that release, she was required permanently to live in Approved Premises in Bedford, not to leave to live elsewhere even for one night, without the prior approval of her supervising officer, and thereafter to reside as directed by that officer.
These judicial review proceedings were launched in January 2013, because the appellant wanted to be released to the London area, albeit not to Haringey where she had lived before her sentence, so that she could be near her family, and she feared that she would be required to live in an AP far from there. She sought declarations that (a) the lack of provision for a women's AP in London is discriminatory contrary to the Equality Act 2010 and/or articles 8 and 14 of the European Convention on Human Rights; and that (b) the Secretary of State had acted in breach of the public sector equality duty in section 149 of the Equality Act by failing to have due regard, in relation to the provision of APs in London, to the need to eliminate discrimination against women, and advance equality of opportunity for them.
Cranston J dismissed her discrimination claim, principally because comparing men prisoners with women prisoners was not comparing like with like. But he did declare that the Secretary of State had failed to discharge the public sector equality duty: [2013] EWHC 4077 (Admin). As he explained, at para 65:
"What is required is that the Secretary of State 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."
The Secretary of State has not challenged that finding, although we have no evidence of what has since been done to give effect to it. The appellant did challenge the finding that there was no discrimination, either direct or indirect, but failed in the Court of Appeal: [2015] EWCA Civ 328. At that stage, she had still not been released and it was regarded as unlikely that, if released, she would be required to live in an AP. On any view, therefore, she had not then personally suffered from the discrimination of which complaint was made, which was that the configuration of APs meant that it was inevitably harder to place women close to home than men.
Since then, of course, she has been released and required to live in an AP in Bedford. So if there is discrimination, she has been the victim of it. We are told by her counsel that she was required to live there for over nine months, was unable to get travel warrants to look for accommodation in London, and is now living in rented accommodation near Bedford. Thus the placement in the Bedford AP has had further consequences for her and perpetuated the separation from her family. She has now brought a discrimination claim in the county court, but this has been stayed until the outcome of these proceedings is known.
Approved premises are premises which have been approved by the Secretary of State under the Offender Management Act 2007, among other things "for, or in connection with, the supervision or rehabilitation of persons convicted of offences" (section 13(1)(b)). Under section 2 of that Act, the Secretary of State is responsible for ensuring that sufficient provision is made throughout England and Wales for "probation purposes". These are defined in section 1(1)(c) to include "the supervision and rehabilitation of persons charged with or convicted of offences". Under section 1(2)(b) to (d), this includes, in particular, assisting in the rehabilitation of offenders being held in prison, supervising persons released from prison on licence and providing accommodation in APs. Under the current Offender Management Act 2007 (Approved Premises) Regulations 2014 (SI 2014/1198), regulation 6(1)(a)(iii), among the general duties of providers of APs is a requirement that "at least two members of staff are present on the premises at all times" (the same was required by the predecessor Regulations ( SI 2008/1263), regulation 7(1)(a)(iii)). Assuming three eight hour shifts in a day, this means that each AP must have a minimum of six staff no matter how many people are housed there.
According to Probation Circular 37/2005, The Role and Purposes of Approved Premises, APs are "a criminal justice facility where offenders reside for the purposes of assessment, supervision and management, in the interests of protecting the public, reducing re-offending and promoting rehabilitation". Their "core purpose" is "the provision of enhanced supervision as a contribution to the management of offenders who pose a significant risk to the public". They cater for male and female prisoners who are assessed as "very high" or "high" risk, but in order to increase take-up APs also cater for female "medium" risk offenders such as the appellant. Although APs also cater for people on bail or serving a community sentence, the majority of residents are there because of the conditions of their release on licence from prison. They have to abide by a curfew and a code of conduct and any breach of the conditions of their licence can result in recall to prison.
The six APs for women have a total capacity of 112 places. This is sufficient to meet demand. They have an annual occupancy rate of 81% compared with 94% in the 94 APs for men. There is a presumption that offenders should be placed in their "home" probation area, although this can be displaced if there are good reasons for placing them in a different area. However, the limited number and geographical distribution of the women's APs mean that women are far more likely than men to be placed in an AP outside their home area and, indeed, many miles away from their homes and families.
In March 2008 there was published the report of a joint inspection of APs by the chief inspectors of probation, prisons and constabulary, Probation hostels: Control, Help and Change? Because of local opposition to new hostels, places had been taken from the women's hostels estate to provide more places for men. This was an understandable, but not acceptable, strategy, nor, in the inspectors' view was it compatible...
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