Justice Secretary wins and loses in discrimination challenge to post-prison facilities for women

30 December 2013 by

Prisoners releaseGriffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin)  – read judgment.

Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.

Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.

Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.

Background 

Due to the low number of approved premises for female prisoners, neither of the Claimants would be able to be supervised in such premises near their family – in Wales and London respectively.

Mr Justice Cranston summarised the nature and core purpose of approved premises to be the provision of enhanced supervision as an integral feature of the enhanced supervision and risk management of those who pose a high or very high risk of harm to the public. Their value was said to lie in the degree of supervision which they afford over offenders, and in the re-introduction of the prisoner to the non-custodial life ahead. The purpose of approved premises was not therefore the provision of residential accommodation for its own sake.

Mr Justice Cranston identified that the majority of persons in approved premises are there because of their licence condition, however, in reality only a proportion of those released on licence have such residence  conditions imposed. He also noted that in 2008 the criteria for admissions for women to approved premises had been relaxed in order to fill the number of vacant places for females in approved premises and to enable offenders to benefit from what approved premises offer. Thus only one half of women in approved premises fall into the high or very high risk category, whereas over three quarters of men do. Lastly, he highlighted that placements in approved premises are generally short. The average stay for any offender discharged from custody in 2012-2013 was 80 days.

Women’s Approved Premises

With respect to the provision of approved premises for female prisoners, Mr Justice Cranston found that in England and Wales there are 94 male approved premises, located in all major population centres, including London. Four of these are in Wales. There are only six female approved premises, none in Wales. He also found that there is a low level of demand for approved premises for female offenders presenting a high or very high risk of serious harm to the public. By reason of their sentence lengths and offence profiles, female prisoners are less likely to be eligible for release on licence and therefore for a post release placement in approved premises. Mr Justice Cranston concluded that “There does not seem to be any difficulty with finding a bed for a woman in approved premises when that is needed.”

Discrimination and the Public Sector Equality Duty

Mr Justice Cranston summarised  the relevant statute and caselaw governing the Secretary of State’s duty under the Equality Act 2010.  Mr Justice Cranston held that for indirect discrimination  under s.19 of the Equality Act to be present a disparate impact must be shown and may be established by showing that a provision, criterion or practice is intrinsically discriminatory; by reference to statistical evidence; or by way of a hypothesis. He emphasised that Section 19 contains no causation requirement, so that it is not necessary to investigate why the provision, criterion or practice puts the group at a particular disadvantage. Unlike direct discrimination, indirect discrimination could be justified, if the arrangement can be shown to be a proportionate means of achieving a legitimate aim: s. 19(2)(d). However, the burden is on the discriminator to show an objective sufficiently important to justify limiting a fundamental right; that the measure is rationally connected to that objective; and that the means are no more than is necessary to accomplish the objective against the seriousness of the detriment to the disadvantaged group. Increased cost may form part of a justification defence, but it cannot be the sole reason. A breach of the public sector equality duty makes it harder for a discriminator to show justification.

With regards to that public sector equality duty, Mr Justice Cranston emphasised that it must be performed as a matter of substance and with rigour. Further, it is a condition precedent to the lawful exercise of power, and is a continuing duty requiring reassessment as new matters occur. A public authority must give due regard to the need to avoid unlawful discrimination whether or not such discrimination actually occurs.

The decision 

While one of the Claimants sought to argue that the lack of any approved premises in Wales denied her the chance to speak Welsh on her release on licence, this ground of challenge was subsumed into consideration of the existence of any justification under the Equality Act 2010. Mr Justice Cranston also held that there was no obligation to achieve a geographic spread of approved premises placed on the Justice Secretary by the Offender Management Act 2007. The case was therefore solely decided on the issues of direct discrimination, indirect discrimination and breach of the public sector equality duty under the Equality Act 2010.

With regards to direct discrimination  the Claimants’ argument was that the Justice Secretary discriminated directly against women in his continuing failure to ensure the provision of approved premises in geographical locations where it is provided to men. Women were treated less favourably than men because of their sex. No woman offender may be released to approved premises in London, Wales or many other areas, with the consequent difficulties for them in maintaining contact with their families and in reintegrating them back into the community. A similar male offender can be released to approved premises in many parts of England and Wales. Similarly, Welsh women are less favourably treated than English women, since they cannot be released to an approved premises in their own country. Essentially the Claimants argued that there must be more than the six approved premises for women at present, and they must be more geographically spread.

Mr Justice Cranston held that in light of  Birmingham City Council v Equal Opportunities Commission [1989] 1 AC 1155  it was impossible for the Justice Secretary to contend that there was no treatment involved in his provision of approved premises. The issue was therefore whether it represented less favourable treatment for the claimants because of their sex (or race in the case of a Welsh female prisoner).

However, he identified the difficulty in the Claimants’ case to be the contention that there was less favourable treatment of women compared with men: “Less favourable treatment requires comparing like with like.” He noted that the criteria for admitting women to approved premises are different from that for men, reflecting the many significant differences in the population of women offenders compared with men, in particular that relatively few women prisoners fall into the high or very high risk categories for admission to approved premises.

Mr Justice Cranston identified that women in approved premises would more likely be further from their home areas than men although, in some cases that could be an advantage. He concluded that:

“There is no evidence that the difficulties they face in returning to their families and support networks are any greater than would be the case were they released directly from prison without any residence condition at all.”

He went onto hold that in the particular facts of these two claimants there was no evidence of any relevant treatment by the Secretary of State such as to ground direct discrimination. The Claimants were not likely to be release on condition that they be accommodated in approved premises.

With regards to indirect discrimination, the Claimants argued that the provision of approved premises places women generally, and Welsh women in particular, at a particular disadvantage by comparison with men and English women respectively in that they cannot be accommodated in approved premises near their home area. The discrimination could not be justified on objective grounds as a proportionate means of meeting a legitimate end.

Mr Justice Cranston held that he was not convinced for the same reasons for his decision on indirect discrimination, that the Justice Secretary was applying anything to the Claimants or to male prisoners, which placed women at a disadvantaged compared to men. He also held that in any case  “the provision, criterion or practice in this case is a proportionate means of achieving a legitimate aim.” The cost of the provision of a  larger number of smaller, more geographically distributed approved premises for women was a factor that should be taken into account. Similarly, the local community opposition which the establishment of new approved premises was likely to engender was relevant; as was the underutilisation of female approved premises so that, if it is an advantage to be in approved premises, female offenders released on licence will readily find a place. The period of stay was also relatively short (80 days on average).

However, with regards to her public sector equality duty, Mr Justice Cranston highlighted that the Justice Secretary was unable to identify any  government response which grappled with the problem or any document which considered whether her statutory duty was satisfied with regard to women’s approved premises. Problems encountered by Welsh, including Welsh-speaking women, were also not addressed anywhere.

Mr Justice Cranston concluded that:

“sufficient regard has not been paid to the public sector equality duty. The equality duty applies not only with discrete decision-making, but also with situations which develop organically… it is a continuing duty and requires ongoing review and assessment… there is no evidence that the Secretary of State has fulfilled his equality duty, at least not since 2008. 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.”

Comment

This decision is a useful demonstration of the comparative and fact centric approach taken by the Courts in considering questions of direct and indirect discrimination. With regards to the public sector equality duty, it underlines that public authorities are under a continuing duty to consider the impact of changes in the content or context of historic arrangements on any potential discriminatory effect. Past policies and practices may no longer be able to stand unaltered, or at least unconsidered, in light of the Equality Act 2010.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: