There were enough approved-premises places for women leaving prison. The difficulty was where those places were. With only six women’s premises across England and Wales, a woman required to live in one faced a much greater risk than a man of being sent far from home. Could a public service discriminate because of that difference even though it had a place for every woman who needed one?
Approved premises and the claim
Approved premises, formerly probation and bail hostels, are used for the supervision and rehabilitation of offenders. Living in one may be a condition of release on licence. They were all single-sex: 94 for men, spread across England and Wales, including several in London, and six for women, in Bedford, Birmingham, Leeds, Liverpool, Preston and Reading, with none in London or Wales. The six women’s premises had 112 places, enough to meet demand, but women were far more likely than men to be placed outside their home area.
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Ms Coll had spent most of her adult life in London and hoped to return near her family. Instead, when released on licence she was required to live in Bedford. She had already brought proceedings challenging the distribution of approved premises for women, including the absence of any in London.
The courts below
The High Court rejected the discrimination claim but held that the Secretary of State had breached the public sector equality duty. The Ministry had not examined the disadvantage to women, its extent or ways of reducing it. That declaration stood. The Court of Appeal also rejected the discrimination claim. The question for the Supreme Court was whether the actual provision of the service treated women less favourably.
Why the Supreme Court found direct discrimination
Lady Hale gave the judgment of the Court. She distinguished the broad question of how best to support women leaving prison from the discrimination claim. The latter turned on how the Secretary of State exercised the public function of providing approved premises.
Direct discrimination is less favourable treatment because of a protected characteristic, here sex. The detriment was the much greater risk of having to live far from home. The Secretary of State argued that some women were placed reasonably near home, so disadvantage did not correspond exactly to sex. Lady Hale rejected that argument. Exact correspondence is relevant where the criterion used is not itself a protected characteristic but is said to be a proxy for one. Here the criterion was sex. It was not necessary that every woman be sent far away. A woman who was sent far away was treated less favourably, and every woman who might be required to live in approved premises on licence faced a much greater risk than a man. Lady Hale saw no valid distinction from the Birmingham selective-school arrangements, where fewer places for girls produced a higher pass mark even though some girls still gained places and the council had not intended to discriminate.
The comparison between men and women was valid. Lady Hale agreed with Elias LJ that differences in risk and admission criteria were not material to the issue of distance from home. The relevant circumstances were the same: offenders released on licence on condition that they live in approved premises. The result did not come from a deliberate wish to disadvantage women. It followed from the much smaller number of women offenders and the policy that premises be single-sex. That policy reflected the particular vulnerability of women required to live there, and the view that their resettlement was more likely to succeed if they were protected from the risks of mixed premises.
Justification
Direct discrimination in this setting is unlawful unless a statutory exception applies. Separate services for each sex, including services provided differently, may be permitted where a joint service would be less effective and, where provision differs, where the lesser demand makes it not reasonably practicable to provide the service otherwise than differently, but only if the limited provision is a proportionate means of achieving a legitimate aim. Lady Hale agreed that these services were different, not merely separate but equal, because of the number and distribution of the women’s premises. It was accepted that mixed premises would be less effective. She also agreed that it was not reasonably practicable to provide 94 premises for 112 women’s places. At least two staff must be present at all times, so minimum staffing does not fall with the number of residents.
The Secretary of State had not demonstrated proportionality. Staffing requirements and the cost of small premises were real constraints, but a desire to save money did not by itself explain why this distribution was justified. The Ministry had never properly assessed how much the geography disadvantaged women or considered how to place them nearer home. Without that work, it could not show that its arrangements struck a proportionate balance.
Indirect discrimination did not provide another analysis. It concerns a requirement applied equally which puts one group, and the individual, at a particular disadvantage. The complaint here was unequal provision, and the same conduct cannot be both direct and indirect discrimination. A requirement to live in approved premises would readily be justifiable by public protection, reducing reoffending and rehabilitation. What had to be justified, and had not been, was the discriminatory distribution.
The Court of Appeal would have refused a declaration even if it had found discrimination, because the remedy is discretionary and justification might still be possible. The Supreme Court was prepared to grant a narrower declaration, leaving justification open in an individual case.
Verdict: The Supreme Court unanimously allowed the appeal to the extent of declaring that the provision of approved premises directly discriminated against women. It was unlawful unless justified under paragraph 26 of Schedule 3 to the Equality Act 2010. The Secretary of State had yet to show justification. The Court did not order a hostel to open in London.
Source: R (Coll) v Secretary of State for Justice [2017] UKSC 40
