Griffiths v Secretary of State for Justice

The claimants challenge what is said to be the continuing failure of the Secretary of State for Justice (“the Secretary of State”) to make adequate provision for so called approved premises to accommodate women released from prison on licence. The claimants are women prisoners approaching the date on which they will be considered for release on licence. There are now only six women’s approved premises in England, none in London, and none in Wales. Thus the claimants are said to face a significant likelihood of being in approved premises many miles from their homes and families, with detrimental effects on their rehabilitation and reintegration into the community. By contrast there are some 94 men’s approved premises, spread throughout England and Wales.

The claimants’ case is that the current state of affairs is unlawful, in that it treats women less favourably than men because of their sex; it subjects women to particular disadvantage by comparison with men; it particularly disadvantages Welsh women; and it constitutes a breach of the public sector equality duty by failing to give due regard to the adverse effects on women of the current provision. The complaint is not that there are not enough places for women in approved premises; there are. Rather the claimants’ case is that approved premises places should be more widely distributed, in smaller centres if necessary, so that women, like comparable men, can be accommodated at a reasonable distance from their homes and families. In advancing their case the claimants invoke a series of reports recommending this as the appropriate course for public policy.

Linda Griffiths

Linda Griffiths is serving a sentence of imprisonment for public protection. She is currently at HMP Askham Grange near York, having spent most of her time at HMP Send in Surrey. She was sentenced in 2009 for the offence of attempted murder of her 77 year old female employer. She had attacked her victim with a claw hammer, hitting her several times in the head and face, causing serious injuries. Her tariff under the sentence expires on 13 February 2016, whereupon she becomes eligible for release on licence which will remain in place for the rest of her life subject to any revocation and recall to prison.

In her witness statement Mrs Griffiths explains that she lived as a child in North Wales, spoke Welsh at home and learnt English only when she started at the local primary school. She attended a secondary school mainly with Welsh speakers. She feels much more comfortable speaking Welsh. Regarding her imprisonment, she states that she has been able to cope because of keeping ties with her family. She communicates with her parents and siblings on a regular basis in Welsh. Her husband, sons and grandchildren live in Cardiff. Because of the length of journey to the prison where she is, her husband visits on average only once every three months. She has been told by probation that a main priority must be to communicate better with her family. She understands that she will be required to live in approved premises for a period after her release from prison. Given the importance to her of communicating in Welsh and of reintegration into the community it would be more difficult if she were placed in approved premises where no one speaks that language. It would also make it more difficult to rebuild her family ties. It appears that Mrs Griffiths told her legal advisors in 2012 that she wished to resettle with her husband in North Wales, or alternatively in Cardiff. Her current intention is to return to South Wales to be with her husband and children.

In January 2013 Graham Morris, Mrs Griffiths’ offender manager, prepared a parole assessment report. Mr Morris has been Mrs Griffiths’ offender manager since the start of her sentence. In the report Mr Morris explained that she had worked hard to address her offending behaviour and recommended that she be moved to open conditions. That would allow her to develop her skills and would enable contact with her family and some contact with the community. Mr Morris did not mention approved premises in his report.

Neither did the Parole Board mention approved premises in its report of 11 June 2013. That recommended to the Secretary of State that Mrs Griffiths be transferred to open conditions given that she had successfully addressed her risk as far as she could in closed conditions. In a second witness statement Mrs Griffiths has said that at the hearing before the Parole Board Mr Morris stated that one of the issues he would investigate was suitable approved premises, albeit that he did not state definitely that she would be released to such premises. Mrs Griffiths accepts that if she lives in Cardiff in the future she may have to be excluded from certain areas of the city where her victim lives.

Isobel Coll

Isobel Coll is serving a mandatory life sentence for murder imposed in 2004. She is currently being held at HMP Askham Grange. She and her co-defendant had been convicted of killing a man with whom the co-defendant had a relationship. Ms Coll had previous convictions, one for manslaughter in 1997. That also involved an adult male victim whom Ms Coll and another person had attacked. She was sentenced to four years imprisonment for that offence. Within three days of being released she committed a further offence of assault. In 2002 she committed an offence of unlawful wounding, although she blamed the co-defendant for breaking a glass bottle and ramming the shattered end into the victim’s face. All offences took place in the context of heavy drinking by Ms Coll and those with whom she associated.

In 2012, when Ms Coll was in HMP Send, a probation officer prepared an OASys report. She was assessed as being a medium risk to the public in the community. In the section of the report on management issues the probation officer said that upon her release Ms Coll may be suitable to reside in approved premises or supported housing. That report also recorded Ms Coll’s understanding that she would not be able to return to the Haringey area of London. She told the probation officer that she would like to be near her children and grandchildren, who are in London, where she has spent most of her life, but she would prefer to live outside the area. The author of the probation report prepared a parole assessment in mid October 2012. In the light of the progress Ms Coll had made she recommended that Ms Coll be transferred to open conditions. She assessed her as presenting a medium risk of harm to others. When the Parole Board considered the matter in May 2013 it recommended that Ms Coll be transferred to open conditions.

Probation Circular 37/2005, the “The Role and Purposes of Approved Premises”, states that approved premises 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.”

Approved premises were previously known as “probation hostels” or “bail hostels” until the single term “approved premises” was adopted in the Criminal Justice and Court Services Act 2000. That nomenclature continues under the Offender Management Act 2007. The core purpose of approved premises is the provision of enhanced supervision as a contribution to the management of those who pose a high or very high risk of harm to the public. The purpose of approved premises is not the provision of residential accommodation for its own sake but residence as an integral feature of the enhanced supervision and risk management offered.

Residence in approved premises may be required as part of an order remanding a person on bail, as part of a community sentence, or as a licence condition when releasing a person from custody, for example, at the half way point of their sentence. The majority of persons in approved premises are there because of their licence conditions, over 90% of male placements, nearly 80% of female placements. A person released from prison is only subject to licence conditions if the sentence is 12 months or more: Criminal Justice Act 2003, s. 238. These will tend to be those released while serving determinate sentences, since the Parole Board will not consider releasing life or other indeterminate sentence offenders on licence unless they can show that they do not pose a risk to the public.

Only a proportion of those released on licence have residence in approved premises imposed as a licence condition. It is the role of the probation trusts to recommend to the Secretary of State that this be a licence condition: Prison Service Instruction 40/2012; Probation Instruction 20/2012. As explained below, a result of Probation Circular 16/2008 was that the criteria for admissions for women to approved premises were relaxed to expand accommodation for lower risk and more vulnerable cases. The aim was 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.

The Approved Premises Manual 2011 provides detailed instructions and guidance for the handling of the some 11,000 admissions to approved premises in England and Wales each year. Approved premises operate relatively strict regimes, with extensive security measures and CCTV monitoring. The nature and purpose of the approved premises regime means that residence is not comparable to ordinary hostel accommodation. Although a resident’s offender manager may approve temporary leave of absence, enabling the offender to undertake home visits, including overnight stays, approved premises are not simply low cost bases for the purposes of visiting family and friends and re-establishing social ties. Their value lies in the degree of supervision which they afford over offenders, in contrast with the preceding custodial way of life, and in the re-introduction of the person to the non-custodial life ahead. Staff working in approved premises must be trained in risk assessment and risk management and need to work closely with offender managers and the local police.

National rules and guidance for residents in approved premises are contained in Probation Instruction 02/2011. These set out curfew hours, which are 11pm to 6am or 7am and any extra curfew or other condition set by the court or contained in the licence. Residents must remain in their own room when approved premises managers require them to do so. However, the maximum curfew which may be imposed is 16 hours in any 24 hour period. The guidance provides that any interruption of the 8 non-curfew hours, permitted by a 16 hour curfew, should be considered extremely carefully. Those in approved premises must take part in programmes including group or individual activities which form part of their personal sentence or supervision plan. They must also write a weekly diary about their planned activities and where they have been. Breach of the conditions of residence can result, as with breach of licence conditions, in recall to prison.

There is a presumption that offenders should be placed in approved premises within their “home” probation area. But there are a number of reasons that they may be placed in a different area. For example, a home area placement may be inappropriate because it may bring them in contact with victims or with individuals or situations which may influence them or trigger a return to offending. There may be a positive benefit in a placement away from an offender’s home area, for example, putting some distance between them and an abusive or controlling partner.

Placements in approved premises are generally short. The average stay for any offender discharged from custody in 2012-2013 was 80 days. All approved premises are now single sex establishments. 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. (In 2013 there were 120 adult prisons in England and Wales; only 13 were for women, and all of these were in England). The nearest women’s approved premises to Cardiff are in Birmingham; the nearest to London are in Bedford and Reading. Since April 2011 the commissioning of approved premises has been undertaken at a national level by the National Offender Management Service. The estate of approved premises has grown over a number of decades in a piecemeal fashion, from a combination of remand homes, former residential homes, decommissioned public buildings and charitable gifts.

Locally, approved premises are controversial because of the public perception that they increase the risk of harm in the neighbourhood. Planning permission has been difficult to obtain. In the West Midlands a plan to close three approved premises and to replace them with a new building in a fourth location was unsuccessful. The transfer in 2012 of an approved premises for women from Manchester to Preston was possible only because the latter was an existing hostel with the necessary planning permission.

Current estimates are that the cost of building or converting a building into approved premises would be between £1.5 and £2.2 million. The annual running cost for an approved premises, with up to 30 beds, no matter how small, is in the region of £500,000 to £750,000 because of the intensity of intervention and the security and staffing requirements. With a minimum of two persons having to be on duty at any time, that means a basic establishment of six persons (over three shifts). The Government takes the view that establishing new approved premises is unlikely to be possible in the current financial climate unless they can be funded from savings elsewhere. A review by the National Offender Management Service of the commissioning of approved premises has been held back pending the development of the Transforming Rehabilitation programme, which is concerned with how offenders are managed in the community.

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. This reflects the population of female offenders. Women constitute only 5% of the total prison population. Female offenders are less likely to be remanded in custody than men. They are less likely to commit violence or sex offences, and are less likely to receive an immediate custodial sentence. Of women sentenced to prison a greater proportion than men serve short determinate sentences of less than 12 months. (In 2011 the average determinate custodial sentence for indictable offences for women was 11.6 months; for men it was 17.7 months.) Overall, females have consistently accounted for only 5% of the prison population as a whole. 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. As at March 2013, 39,340 men were subject to post-release licence supervision, but only 2,542 women. The proportion of women in prison recalled for breach of their licence conditions is less than for men.

In 2013 the six female approved premises had a total capacity of 112 places with an annual overall occupancy rate of just over 80% (compared with 94% for male approved premises). Bed capacity and occupancy rates of each was as follows: Liverpool (16; 91.5%); Bedford (17; 89.9%); Birmingham (20; 82.5%); Preston (12; 79.3%); Reading (22; 70.7%); and Leeds (25; 75.1%). There does not seem to be any difficulty with finding a bed for a woman in approved premises when that is needed. There are no female approved premises in London after the closing of an approved premises called Kelley House in Kings Cross in April 2009. Its closure was prompted by the low demand for placements for women in approved premises in London and its own underuse and unpopularity. The high demand in male approved premises precludes their conversion to female use. In addition to approved premises, the probation service may assist female offenders released from prison to be accommodated in hostels, supported housing, and private accommodation.

Baroness (Jean) Corston was asked by the Home Office to undertake a review of the position of women in the criminal justice system. Her report was published in March 2007 (“the Corston Report”). In the course of her inquiry she consulted widely. Her report argued for a fundamental rethink and a more women-centred approach, since women had been marginalised within a system largely designed for men. That did not require treating everyone the same but taking positive action to eliminate gender discrimination. “Equal treatment of men and women does not result in equal outcomes … Treating men and women the same results in inequality of outcome”. One point made by the Corston Report was that the small number of women’s prison and their geographic location meant that women in prison tended to be further from their homes than male prisoners, to the detriment of maintaining family ties, receiving visits and resettlement back into the community.

The Corston Report recommended smaller units for females closer to home and more easily accessible for visitors, for example, by locating them in city centres. These units could be multifunctional, with varying levels of security, to perform the role of bail hostels, local training centres and resettlement prisons, and with links to other local support centres. The lack of provision of suitable approved premises, especially for bail, and particularly in rural areas, was touched on in the report. One of the recommendations of the report was that the first principle of every resettlement should be to release prisoners into their home areas. Baroness Corston was especially impressed by the model recommended by a probation board member in Norfolk, in which, particularly in rural areas, there would be a “one stop shop” providing an integrated approach to services for women offenders.

Welsh Prisoners in the Prisoner Estate was a report of the House of Commons Welsh Affairs Select Committee in May 2007 (HC 74). It noted that there were only four prisons in Wales, all in the south of the country, and none of them for women. Most female Welsh offenders were held at HMP Styal in Cheshire and HMP Eastwood Park, Gloucestershire. Female Welsh prisoners were held on average over 100 miles from their home (the average for Welsh adult male prisoners was 53 miles). The committee recommended that new prison places should be provided in north Wales. It also endorsed the approach to the treatment of female prisoners in the Corston Report, with the establishment of small community based residential units for female offenders. The committee noted that the rehabilitation and settlement of many prisoners was hampered by the distance from home. Losing contact with families and the community made resettlement more difficult. The distances agencies were required to travel placed a strain on their resources and restricted the scope of their work. Family participation in formal rehabilitation programmes was hampered as a result. Specifically the committee recommended the need for probation supervised hostel accommodation in Wales for returning prisoners: [62], [85].

The Government responded to the Welsh Affairs Select Committee report in August 2007. With respect to the recommendation about provision for female offenders and support for families, the government said that it agreed in part with the committee’s recommendations. It noted that there had been a review of probation approved premises in 2005. That had concluded that there was a limited need for such a facility for women prisoners in Wales, based on the required risk criteria for such accommodation. Other options should be explored. Work was being undertaken, including steps to take account of the findings of the Corston Report, but it was a complex area requiring wide consultation.

In March 2008 there was a joint inspection of probation approved premised by the chief inspectors of probation, prisons and constabulary (the “Joint Inspection Report”). At the outset the report set out four key findings in respect of the national strategic context. The first was that the creation of new hostels to meet the level of assessed need “had proved to be impossible in recent years due to local opposition”. In the chapter about hostels for women offenders, the report stated that there were too few hostels, a situation which was likely to continue due to successful opposition by the public to their creation. The report described how the female hostel estate had been declining for some time to the benefit of the male estate. That was understandable in terms of achieving an increase in provision without cost in male provision in the politically demanding arena of managing dangerous offenders. However, it was not an acceptable strategy from the point of view of women, nor was it compatible with equalities legislation.

At the time of the Joint Inspection Report there were 140 women in women only hostels, 6.4% of the total hostel accommodation of 2,200 bed spaces. (At the time of the report 18 beds for women were in three mixed hostels; at the time of the hearing there were no mixed hostels. The report was against mixed hostels). Seven of the 100 mainstream hostels were for women. While the number of places for men and women could be seen as fair, given the respective prison populations, the report said that,

“in terms of successful rehabilitation and integration back into the community, location was probably more important than the number of beds available and that, therefore the current provision was inadequate. The number and location of hostels for women perpetuated the discrimination experienced by women in prison in that a higher proportion than men were forced to stay a long way from home. For women, in particular enforced separation from their families and support networks compounded the problems associated with their offending, e.g. relationships and mental health … The main element of discrimination against female prisoners and by extension against female hostel residents was the distance between their family and community and where they were located during the custodial and licenced supervision elements of their sentences.”

The report stated that the location of women’s hostels meant that because travel to them was expensive, slow and unlikely to be direct, potential residents would face a journey of several hours to visit their children. In addition, since most hostel residents had lost their own accommodation, regaining suitable accommodation for themselves and their children in a different part of the country would seem insurmountable. “We thought that this was a likely explanation for many women not being referred to a hostel a long way from home.”

The report lent support to the recommendation of the Corston Report for small, multifunctional centres. The demand by men for hostel places, and the consequent conversion of mixed hostels into male only hostels, were underlined. The report rejected mixed hostels, but advocated “adequate and appropriate provision for female offenders … within each probation region in the short term and plans drawn up to ensure reasonable access from all major centres and population by 2011.”

In response to both the Corston Report and the Joint Inspection Report, the Home Office issued Probation Circular 16/2008, “Expanded use of female approved premises”. It encouraged areas to make greater use of female approved premises for women who did not necessarily present a high risk of harm to others. The circular stated that female approved premises were geographically scattered and generally acknowledged not to be the optimum provision for female offenders. Very few residents in the hostels were assessed as posing a very high risk of harm, and disproportionately large numbers were medium risk. At the same time occupancy was low, in some cases around 50%. Thus a valuable resource was not being used to the fullest extent. The staff skills at hostels could be of benefit to others who presented a relatively lower risk of harm, but who might themselves be vulnerable or at risk. The report noted that there would be a longer term survey of the need for approved premises places, which would pay particular attention to the needs of female offenders. In considering placements, the circular stated, it should be borne in mind that female approved premises were not conveniently located to many parts of the country, and that distance from home and family connections could be a significant barrier to resettling offenders.

In December 2009 the Ministry of Justice published a report on the Government strategy for diverting women away from crime (“the 2009 strategy”). Among the future commitments contained in the strategy was capital funding in 2010 of around £5 million to improve approved premises for women. The strategy stated that, subject to planning permission, where appropriate the new facilities would allow more women to use premises in the community, would enable safe rooms for women in crisis, and would offer facilities for women who were older or had disabilities. It noted that in Wales the Ministry of Justice was examining a range of options for providing supported housing for female offenders in small units to enable women to stay closer to home.

The Welsh Affairs Select Committee of the House of Commons followed up the issue of Welsh prisoners in a report in February 2010 (HC 143). It reiterated the lack of provision for female prisoners across Wales.

In January 2013, the government announced a review of the female custodial estate. The review was expected to examine current capacity, distances from home, and the future composition of the estate “so as to improve women’s access to relevant opportunities and regimes for their rehabilitation needs.” The announcement stated that it was crucially important to have appropriate accommodation which met the needs of female prisoners, and to have the right design, location and facilities, which were affordable and deliverable. In March 2013 the Ministry of Justice published its Strategic objectives for female offenders. There was to be a new Advisory Board convened by the Minister. There was no reference to approved premises in the document. In its response to the Transforming Rehabilitation consultation, the government said in May 2013 that the specific needs of women offenders would be addressed via the review started in January under its Strategic Priorities, and by the work of the Advisory Board.

The Justice Select Committee of the House of Commons published its report Women offenders: after the Corston Report in July 2013. The committee noted that the issue of female offending too easily failed to obtain priority in the face of other competing demands. Clear leadership and a high level of support from ministers as a whole would be essential in restoring the lost momentum. The committee noted specifically that there was little evidence that the equality duty, so far as it related to gender, had been used robustly to hold providers to account. In particular it did not appear to have had the desired impact on encouraging local commissioners to provide gender specific services where the needs of female offenders had been recognised as different from those of males.

As to approved premises, the Justice Select Committee noted that there had been some shift in their use for medium risk offenders and for women with high needs (mental health and drugs), but it seemed that approved premises were not fully utilised. Given the difficulties women faced finding accommodation on their release from prison, either the criteria for acceptance to approved premises needed to be changed or the reasons that female approved premises were only half full needed to be addressed. The committee said that the unacceptable lack of secure provision for women in Wales provided an ideal opportunity to test the combination of residential alternatives for custody and the use of small custodial units. The committee stated:

“[196] Sometimes being required to live away from a home area can provide a break with a set of circumstances which, if a woman were to be returned to them, would be likely to perpetuate the problems that caused her to offend in the first place. Having only 6 approved premises for women limits the number of women who can benefit from their constructive regime and support. More women could benefit from safe, secure and supervised accommodation. Approved premises have the expertise and experience working with female offenders across the full risk of harm continuum and we consider that the approved premises estate could usefully be expanded to manage more women safely and cost effectively in the community.”

There is a statement before the court by Maureen Mansfield, who is with the charity, Women in Prison. She says that locating women offenders temporarily away from home is unsettling and devaluing. It directly contradicts understood knowledge about how to assist women to resettle through supporting relationships and community engagement. Ms Mansfield says that during residence at approved premises, responsibility for an offender’s management will temporarily be transferred, resulting in a change of offender manager. She states that women generally take more time to develop positive relationships with professionals. Placing them with unfamiliar individuals is disruptive to their progress and places them at a further disadvantage against men. This is often cited as a reason for their inability to cope, leading to a recall to custody.

Finally, for sake of completeness I note that the National Offender Management Service plans to reduce the number of women in prison. It is investing some £15.6 million over the next two years to help divert vulnerable women, who are not serious or dangerous offenders, from prison. In addition, in 2012-2013 the National Offender Management Service provided £3.78 million to the probation trusts to support 31 women’s community services.

Offender management provisions

Section 2 of the Offender Management Act 2007 (“the 2007 Act”) provides that it is a function of the Secretary of State to ensure that sufficient provision is made throughout England and Wales for probation purposes: s. 2(1). Probation purposes are defined in section 1 of the 2007 Act to include the supervision and rehabilitation of persons charged with or convicted of offences: s. 1(1)(c). Those purposes include, in particular, assisting in the rehabilitation of offenders being held in prison, supervising persons released from prison on licence, and providing accommodation in approved premises: s. 1(2)(b)-(d). In discharging his functions in relation to the provision of probation services, the Secretary of State must have regard to certain aims, including the protection of the public, the reduction of re-offending and the rehabilitation of offenders: s. 2(4)(a),(b),(e). Section 13 provides that the Secretary of State may approve premises in which accommodation is provided for persons granted bail in criminal proceedings or for, or in connection with, the supervision or rehabilitation of persons convicted of offences: s. 13(1). Under Section 13(3) the Secretary of State may make payments in connection with the operation, construction or renovation of approved premises.

The Offender Management Act 2007 (Approved Premises) Regulations 2008, SI 2008, No. 1263 make provision for the regulation, management and inspection of approved premises. Regulation 5 contains residence conditions for approved premises, and Regulation 7(1)(a)(iii) provides that at least two members of staff must be present at approved premises at all times.

Prior to the 2007 Act, local probation boards were constituted under section 4 of the Criminal Justice and Court Services Act 2000 (“the 2000 Act”). That legislation provided for approved premises and the Secretary of State had the function of ensuring that provision for them was made in England and Wales: ss. 1(2)(c), 3. It was the function of a local probation board to make arrangements for ensuring “that sufficient provision is made in respect of its area for the purposes mentioned in section 1”.

Discrimination and the public sector equality duty

The Equality Act 2010 (“the 2010 Act”) provides that sex and race are protected characteristics, and race includes ethnic or national origins: ss. 4, 9. Section 212(2) of the 2010 Act provides that reference (however expressed) to an act includes a reference to an omission.

Section 13(1) prohibits direct discrimination;

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

Section 23(1) provides that on a comparison of cases for both direct (and also indirect) discrimination, there must be no material difference between the circumstances of each case. Less favourable treatment is not a high threshold and is wide enough to cover any disadvantage: Jeremiah v Ministry of Defence [1980] QB 87. Direct discrimination cannot be justified in the case of sex and race discrimination: see s.13(2), Schedule 3.

Section 19 addresses indirect discrimination:

“(1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant particular characteristic of B’s.

(2)

For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

(a)

A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)

it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)

it puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.”

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. Section 19 contains no causation (“because of”) 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 may be justified, if the arrangement can be shown to be a proportionate means of achieving a legitimate aim: s. 19(2)(d). 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: Woodcock v Cumbria PCT [2012] EWCA Civ 330; [2012] ICR 1126, [66]. A breach of the public sector equality duty makes it harder for a discriminator to show justification: Secretary of State for Defence v Elias [2006] EWCA Civ 1293; [2006] 1 WLR 3213, [133], [175].

Section 29 (6) of the 2010 Act provides that a person, in the exercise of a public function that is not the provision of a service to the public or a section of the public, must not do anything that constitutes discrimination. A public function is a function which is a function of a public nature for the purposes of the Human Rights Act 1998: s. 31(4).

The public sector equality duty is contained in section 149 of the 2010 Act. It imposes on public authorities a duty, in the exercise of their functions, to have due regard to the need to eliminate discrimination and any other conduct prohibited by the Act, and to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not: s. 149(1)(a)-(b). In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 Elias LJ noted that the aim of the public sector equality duty is to bring equality issues into the mainstream of policy consideration: [72]. He also said:

“[73] The courts have emphasised that [compliance with the public sector duty] is not satisfied merely by ticking boxes; it is a matter of substance and must be undertaken with rigour: see R (Baker & Ors) v Secretary of State for the London Borough of Bromley [2008] EWCA 141, para 37, per Dyson LJ. His Lordship added that although it was not necessary in terms to refer to the relevant sections in order to demonstrate that the duty had been considered, nonetheless it was good practice to do so, and also to refer to any relevant Code of Practice or circular. This would increase the likelihood that relevant factors were taken into account.”

The duty imposed is a condition precedent to the lawful exercise of power: R (BAPIO Action) v Secretary of State for the Home Department [2007] EWCA Civ 1139, [3] per Sedley LJ. It is a continuing duty and requires reassessment as new matters emerge: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [90]-[96]. It is separate from the individual duties such as those contained in sections 13 and 19 of the Act, and a public authority must give due regard to the need to avoid unlawful discrimination whether or not such discrimination actually occurs. The role of the court is to decide whether there has been due regard paid and if so, whether there has been a rational weighing of the different factors: R (Hurley and Moore) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin), [77]-[78], per Elias LJ. As Laws LJ put in R(MA) v Secretary of State for Work and Pensions [2013] EWHC 2213, 72, section 149 sets an important standard for public decision-making: [72].

At the heart of the claimant’s case, submitted Ms Rose QC, was the Equality Act 2010. Although the claim had been pleaded as well on the basis of a breach of the claimant’s rights under Article 8 (family and private life) and Article 14 (discrimination) of the European Convention on Human Rights (“ECHR” or “the Convention”), the consequent obligations on the Secretary of State were no more onerous than those imposed by the Equality Act 2010. Thus Ms Rose QC was able to focus her submissions on the latter.

Mrs Griffiths’ grounds ventilated section 5 of the Welsh Language Act 1993. That obliges the Secretary of State to have a Welsh language scheme. Under his 2010 scheme the Secretary of State has undertaken to assess the linguistic consequences of policies affecting Welsh speakers, to facilitate the use of Welsh wherever possible and to implement equality so far as it is appropriate and reasonably practical. By failing to provide an approved premises in Wales, the Secretary of State has denied Mrs Griffiths the opportunity, the grounds assert, to speak her own language on her release into approved premises. Before me Ms Rose QC accepted that this aspect of the claim fell conveniently alongside justification under the Equality Act 2010 as to the lack of approved premised in Wales. In passing I note that section 14 of the Equality Act 2010, which addresses disadvantage because of a combination of factors such as sex and race, is not yet in force.

In the course of her submissions Ms Rose QC raised in passing an issue of statutory interpretation. She pointed to the legislative history of the functions of the Secretary of State under the Offender Management Act 2007 in relation to approved premises. Under the 2000 Act the obligation was imposed on local probation boards to make sufficient provision for approved premises. At the time there were 42 local probation boards and that suggested that premises needed to be geographically spread. Ms Rose QC submitted that the obligation imposed on the Secretary of State to make sufficient provision in the Offender Management Act 2007 had to be read against that background. In my view the legislative history cannot bear the weight which Ms Rose QC sought to place upon it and this point goes nowhere. In no way can an obligation to achieve geographical spread of approved premises be implied into the 2007 Act.

Thus the claimants’ case fell under three main heads: direct discrimination, indirect discrimination and breach of the public sector equality duty. As for direct and indirect discrimination under sections 13 and 19 of the Equality Act 2010, these are engaged, if at all, by virtue of the prohibition in section 29(6) on discrimination in the exercise of a public function. In their reply to the Secretary of State’s grounds, Ms Rose QC and Mr Stanbury asserted that the Secretary of State was exercising a public function, and not providing a service under section 29. In my view that concession was properly made and it should not be surprising that the Secretary of State prepared for the hearing on that basis. There is therefore no need to consider the aspects of section 29 and Schedule 3 relating to the provision of a service.

Section 29(6) of the Equality Act 2010 prohibits discrimination in the exercise of a public function and section 13(1) defines direct discrimination as less favourable treatment because of a protected characteristic. In outline, the claimant’s case is that the Secretary of State has 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 are being 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. None of this, on the claimants’ case, means that every male approved premises must be matched geographically by a female approved premises. However, there must be more than the six approved premises for women at present, and they must be more geographically spread.

The Secretary of State’s primary response to the direct discrimination claim is that the claimants cannot demonstrate that he has engaged in any treatment of them in the exercise of his functions under sections 2 and 13 of the Offender Management Act 2007, of ensuring sufficient provision for probation purposes, in particular, the provision of approved premises. Treatment in section 13(1) connotes A somehow dealing with, or behaving towards, B, albeit not necessarily in face to face interaction: Alder v Chief Constable of Humberside Police [2006] EWCA Civ 1741, [16], [19], per Sedley LJ. If section 13(1) of the Equality Act 2010 is to apply there must be some such treatment by A of B capable of being compared with the treatment of others. The language of treatment simply does not cover the reality of what the Secretary of State is doing when exercising his functions under the 2007 Act. These are high level national policy functions with major resource implications.

The starting point in considering these submissions is Birmingham City Council v Equal Opportunities Commission [1989] 1 AC 1155 (“the Birmingham Schools case”). That confirmed the approach that a person can discriminate under what is now the Equality Act 2010 without any intention or motive on their part. There the pattern of development of grammar schools in Birmingham for boys and girls evolved historically to the disadvantage of girls. There were considerably fewer places at girls’ grammar schools so that girls with a test mark in the entrance examination near the borderline had a substantially smaller chance than boys of obtaining a grammar school education. Lord Goff held that there was discrimination as defined in the legislation because there was less favourable treatment on grounds of sex, in other words, the relevant girls would have received the same treatment if they were boys: 1194A-B. The other law lords agreed: 1189G-1190B. In his speech Lord Goff observed the great difficulties faced by the council in solving the problem, although he noted that there was no evidence that it had sought actively to overcome whatever difficulties there were: 1192 A-B. In the course of his speech Lord Goff held that it did not have to be shown that a grammar school education was somehow better: it was enough that girls were deprived of a choice which they, or at least their parents, on reasonable grounds obviously valued: 1193G-H.

In light of the Birmingham Schools case it seems impossible for the Secretary of State to contend that there is no treatment involved in his provision of approved premises. The issue then becomes whether it is less favourable treatment for the claimants because of their sex (or race in Mrs Griffiths’ case). The Secretary of State cites authority that different treatment of the sexes is not necessarily less favourable treatment. To constitute discrimination, it was said in one case, “it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other”: Smith v Safeway plc [1996] ICR 868, 876G, per Phillips LJ (see also at 881C, per Peter Gibson LJ). That was a dress code case, where the court held that one should adopt a package approach and consider the effect of the dress code overall, not item by item: at 877B-C. The dress code cases have been the subject of justified criticism by academic commentators: see A McColgan, Discrimination Law, 2005, 481-487.

In R (on the application of Dowsett) v Secretary of Stare for Justice [2013] EWHC 687 (Admin), Silber J invoked the obiter remarks in Phillips LJ’s decision in Smith v Safeway plc outside the context of a dress code: the case concerned “rub-down” searches of male prisoners by male and female staff. But in that case the claimant had not argued that male prisoners should only ever be searched by male staff. Silber J held that by that concession the claimant must have accepted that there are policy differences between male and female prisoners when it comes to rub-down searches which cannot be regarded for that reason alone as constituting sexual discrimination: [54]-[63]. For that reason Dowsett is, in my view, a special case.

Under section 13(1) of the 2010 Act the less favourable treatment must be “because of” the protected characteristic, in this case sex. The language “because of” is the more user-friendly version of the “grounds of” formulation, which appeared as the causation test in the predecessor legislation and imports the same test. In R (E) v Governing Body of JFS School [2009] UKSC 15; [2010] 2 AC 728 Lord Phillips found the “but for” test unhelpful in determining causation and preferred the question: “what were the facts that the discriminator considered to be determinative when making the relevant decision?” [16]. Lord Phillips emphasised that motive is always irrelevant but that in some cases there may be doubts about the factual basis which caused the discriminator to discriminate. For example, in an employment application case was it because of sex or race, or was it because of a lack of qualifications: [21]-[22]. The same approach was taken by Baroness Hale, who observed that the Birmingham Schools case was not such a case: there the reason for discrimination was absolutely plain: [62]-[64] (see also Lord Mance at [78]; Lord Kerr at [114]-[116] and Lord Clarke at [132], [137]).

To my mind the difficulty in the claimants’ case is the contention that there is less favourable treatment of women compared with men. Less favourable treatment requires comparing like with like. Following Probation Circular 16/2008 the criteria for admitting women to approved premises are different from that for men. That reflects 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. This is not the Birmingham Schools case. There is no evidence that rather than immediate release residence in approved premises is valued by offenders, as was a grammar school education, even if objectively it might benefit the inmates. More importantly, there were a roughly equal number of girls and boys in that case, and girls with comparable marks did not have the same chance of obtaining a grammar school place. The female prison population differs in many ways from that of men, not least that proportionally fewer women are sentenced to 12 months or more, the legal prerequisite to the imposition of licence conditions on release. Thus proportionally more women than men have the advantage of release without any licence, least of all a licence condition of residence within the strict regime of approved premises.

It is the case that women in approved premises will more likely be further from their home areas than men although, as the Justice Committee recognised in paragraph 196 of its 2013 Report, in some cases that can be an advantage. While offenders being close to a home area is an advantage in facilitating contact with their families and reintegration into the community, the period of residence required in approved premises is relatively short, 80 days on average. Of course the women there will still be serving their sentence while in approved premises and later when under licence. 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.

Even if I am wrong about this, I am not persuaded that these two claimants can demonstrate any relevant treatment by the Secretary of State. The treatment will come when the Parole Board recommends their release and licence conditions are set obliging residence in approved premises. If the claimants were serving determinate sentences they would have to be released when they reached, typically, the half way point in their sentence, whatever the risk they posed. But both claimants are serving indeterminate sentences, Mrs Griffiths, imprisonment for public protection, Ms Coll, life imprisonment. The Parole Board will not recommend the release of prisoners like the claimants, even if they reach their tariff period, unless they can demonstrate that they are not a risk to the public. The evidence is that at present both fall into the medium risk category.

Ms Rose QC contended that both Mrs Griffiths and Ms Coll could have a condition imposed in their licence of having to spend time in approved premises. That, in her submission, was sufficient since this was public law, not a private law, claim. They both fell into the category of victims at risk of being directly affected by the measure of which complaint is made: Lester, Pannick & Herberg, Human Rights Law and Practice, 3^rd ed., 2009, 68-69. I am not persuaded that they fall into that category, even if this is the relevant test in an ordinary public law challenge. Both claimants are a considerable time from release, even if that occurs around the time their tariffs expire. The only evidence in Mrs Griffiths’ case is in her second witness statement, where she says that her offender manager stated that he would investigate suitable approved premises, not that she would be released to them. In Ms Coll’s case there is a reference to approved premised in her records: the probation officer said in the 2012 OASys assessment that Ms Coll may be suitable for release to approved premises. In neither case does this constitute the requisite level of risk.

If the Secretary of State cannot be said to be discriminating directly, Ms Rose QC submitted that he is doing so indirectly. 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 Secretary of State cannot justify this discrimination on objective grounds as a proportionate means of meeting a legitimate end. The fact is that the Secretary of State has never undertaken the analysis necessary to demonstrate that the practice meets a real need, sufficient to outweigh the seriousness of the disadvantage to women: R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213, [151], [165]. There is no adequate justification for the adverse effects of the Secretary of State’s policy on women, and Welsh women in particular.

For reasons similar to those given in relation to direct discrimination I am not convinced that the Secretary of State is applying to the claimants a provision, criterion or practice which applies to men (or the non-Welsh) and which by comparison puts women (or the Welsh) at a particular disadvantage. Nor am I convinced that if she is applying a provision, criteria or practice which puts women (or the Welsh) at a particular disadvantage when compared with men (or the non-Welsh) or which puts, or would put, these claimants at a disadvantage.

But if I am wrong in any of this it seems clear to me that the provision, criterion or practice in this case is a proportionate means of achieving a legitimate aim. That is because the model Ms Rose QC advanced on the claimants’ behalf comprises a larger number of smaller, more geographically distributed approved premises for women. One factor, albeit only one factor, in this balance is cost: see Ministry of Justice v O’Brien [2013] UKSC 6; [2013] 1 WLR 522, [63], [70] (including the commentary on Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330; [2012] ICR 1126). No matter how small, the annual running cost of approved premises is said to be in the region of £500,000-£750,000 per annum. In an era of financial austerity this is a real challenge. Quite apart from cost is the local community opposition which the establishment of new approved premises is likely to engender. On the other side of the balance are the present arrangements. There is the disadvantage of persons not being in approved premises close to their home and community. In her statement Ms Mansfield explains how for some closeness to their home area would be an advantage. But there is 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 is relatively short (80 days on average). In my view the current provision of women’s approved premises can be regarded as constituting a proportionate measure.

Ms Rose QC submitted that in the exercise of his functions the Secretary of State has not had due regard to the need to eliminate discrimination and to advance equality of opportunity as required by the public sector equality duty in section 149 of the Equality Act 2010. The claimants expressly conceded that the Secretary of State did not have to engage in regular equality impact assessments in this regard. However, Ms Rose QC contended that there was no indication in the Secretary of State’s evidence that the repeated criticism of the provision for women has been considered, or that any strategy had been devised to address it. The Corston Report had identified the lack of provision of suitable approved premises as part of what was characterised as the marginalisation of women in the criminal justice system. The Joint Inspection Report addressed specifically how discrimination experienced by women in prison was perpetuated because of the reduction in the approved premises estate, with the result that they were forced to stay a long way from home. In 2013 the Justice Committee recommended a greater number of approved premises for women and commented that there was little evidence of the gender equality duty being used to resolve their needs.

The various reports to which I was taken clearly raise important issues of public policy but I am not sure they can bear the weight Ms Rose QC sought to place on them. The only report which seems to have raised discrimination in the provision of approved premises for women in a very direct way is the Joint Inspection Report. In the passage quoted earlier in the judgment the three chief inspectors of probations, prisons and constabulary described the decline in the number and location of approved premises for women and commented specifically on how this perpetuated the discrimination experienced by women in prison, in that a higher proportion of them than men were forced to stay a long way from home. The response to the report was Probation Circular 16/2008, which widened access to women’s approved premises.

For the Secretary of State Mr Sanders was unable to identify any other government response which grappled with the problem or any document which considered whether the section 149 duty was satisfied with regard to women’s approved premises. Yet since the time of the Judicial Inspection Report and Probation Circular 16/2008 the number and location of approved premises for women has shrunk further. Mr Sanders referred me to the Ministry of Justice National Offender Management Service document dated March 2012, A Distinct Approach: A guide to working with women offenders. But the passages on post release supervision simply encourage the use of approved premises and do not address the section 149 issue. Nor does the Secretary of State’s annual Equalities Report or the ministerial document of March 2013, Strategic objectives for female offenders. Problems encountered by Welsh, including Welsh-speaking women, are certainly not addressed anywhere. Mr Sanders mentioned new funding streams but it was not clear to me what relevance this had to women’s approved premises.

Mr Sanders submitted that historically there had been little coordinated development of approved premises, which instead had grown by an organic process, and that approved premises were only one relatively small part of the criminal justice system. To my mind the first submission underlines the point 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. There is legislative support for this in section 212 of the 2010 Act. Moreover, the case-law makes clear that it is a continuing duty and requires ongoing review and assessment. Mr Sanders rightly says that the geographic spread of female approved premises is a discrete issue among many regarding their provision. However, he is unable to demonstrate where the Secretary of State has engaged with the equality duty holistically, as he contends ought to be the approach, with female approved premises. As regards the second submission, the number of women affected is relatively small although the rehabilitation of each of them could have large benefits. In any event the matter was placed on the agenda by the Joint Inspection Report, which devoted a section to it.

Thus 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. The equality duty is not outcome orientated, as Mr Sanders rightly submitted. Nor does it demand a minutely detailed examination of all possible equality impacts. However, as Laws LJ expressed it in R (MA) [2013] EWHC 2213, [72], it is an important standard for public decision-making. In this case the Secretary of State has not met the standard.

For the reasons I have given the Secretary of Stare has not discriminated, directly or indirectly, in the performance of his functions of providing approved premises for women. However, he needs to undertake the analysis necessary to fulfil his equality duty under the Equality Act 2010.