Justice Secretary wins and loses in discrimination challenge to post-prison facilities for women
30 December 2013
Griffiths 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.
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