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R (on application of Coll) v. Secretary of State for Justice - (24 May 2017)

A person exercising a public function must not do anything that constitutes discrimination, harassment or victimisation


In facts of present case, in August 2004, Appellant was sentenced to life imprisonment for murder, with a tariff of 11 years and three months. Her tariff expired in November 2015, nearly two years after present 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 prior approval of her supervising officer, and thereafter to reside as directed by that officer.

Judicial review proceedings were launched in January 2013, because Appellant wanted to be released to 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) lack of provision for a women’s AP in London is discriminatory contrary to Equality Act, 2010 and/or Articles 8 and 14 of European Convention on Human Rights; and that Secretary of State had acted in breach of public sector equality duty in Section 149 of Equality Act by failing to have due regard, in relation to 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

Appellant’s case is of direct discrimination. Being required to live in an AP, a long way away from home is a detriment. A woman is much more likely to suffer this detriment than is a man, because of geographical distribution of the small number of APs available for women. This is treating her less favourably than a man because of her sex.

Not all conduct which falls within those definitions of discrimination is unlawful. Section 29(1) and (2) of Equality Act, 2010 provides that, a person concerned with provision of services to public, or a section of public, whether or not for payment, must not discriminate by not providing service, or as to terms on which it is provided, or by terminating it, or by subjecting a person to whom service is provided to any detriment. Section 29(6) of Equality Act 2010, provides that a person must not, in exercise of a public function do anything that constitutes discrimination, harassment or victimisation. Provision of APs under Offender Management Act is clearly a function of this nature. However, APs are commissioned rather than directly provided by Secretary of State.

Paragraph 26 of Schedule 3 to Equality Act, 2010 (EA) recognises that, there may be good reasons for providing separate facilities for men and women. Paragraph 26 proceeds on assumption that, without it, provision of single sex services would be unlawful discrimination. Although, wording of paragraph 26(1) and (2) is aimed at people actually providing service in question, paragraph 26(3) applies paragraph to a “person exercising a public function in relation to provision of a service as it applies to person providing service”. It is difficult to see how commissioning (and regulation) of APs under Offender Management Act is not exercise of a public function “in relation to” provision of those APs. As Elias LJ observed “words ‘relate to’ are broad and would in principle cover all administrative decisions which are inextricably linked with the policy of creating sufficient APs to meet needs of both sexes separately”.

A joint service for persons of both sexes would be less effective. Expecting women offenders, with their many vulnerabilities, to share premises with male offenders who by definition present a high or very high risk of harm is not likely to be an effective way of helping them with transition to an independent and law abiding life in outside world.

Saving cost is a legitimate objective of public policy. Finding that, Secretary of State was in breach of public sector equality duty also means that, Ministry is not in a position to show that, discrimination involved in different provision made for men and for women is a proportionate means of fulfilling a legitimate aim. It may or may not be. But, it is for Respondent to show that, discrimination is justified. Given that, Ministry has not addressed possible impacts upon women, assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it or to meet particular circumstances of women offenders, it cannot show that present distribution of APs for women is a proportionate means of achieving a legitimate aim.

It is difficult to analyse this case in terms of indirect discrimination. Whole point of indirect discrimination is that, a PCP is applied equally to, in this case, men and women, whereas complaint here is of unequal provision. Conduct cannot at one and same time be both direct and indirect discrimination. Finding that, this is direct discrimination, albeit potentially justifiable, rules out a finding of indirect discrimination.

Provision of Approved Premises in England and Wales by Secretary of State pursuant to Section 2 of Offender Management Act, 2007, constitutes direct discrimination against women contrary to Section 13(1) of Equality Act 2010 which is unlawful unless justified under paragraph 26 of Schedule 3 to 2010 Act. No such justification has yet been shown by Secretary of State. An individual woman who is less favourably treated as a result of provision of APs may bring a sex discrimination claim in county Court, but that it will be open to Secretary of State to resist claim (assuming it to be made out on the facts) on ground that, provision is justified under paragraph 26. Appeal allowed.


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