NewsBack to News
Summary of a recent Supreme Court decision by Sophie Walker
15 Mar 2017
Sophie Walker, a pupil-barrister at One Pump Court chambers, provides a helpful summary of the recent Supreme Court decision: R (on the application of Coll) v Secretary of State for Justice.
For prisoners serving long or indeterminate sentences, being sent to an Approved Premises (or “APs”) is often the first critical step to being released from prison. The APs provide a structured, supervised and single-sex environment for prisoners to ease their transition back into the community.
Despite the important role APs play in the rehabilitation of prisoners, particularly those considered relatively high risk, there are very few women’s APs in England and Wales: only six, to be exact. There are none in London or in Wales. In contrast, there are 94 men’s APs.
If the Appellant, Ms Coll had been a man, she would have resided in an AP in London, but as none exist she instead went to one in Bedford, far from her family and her home. The issue before the Supreme Court was whether the arrangements for placing prisoners in APs gave rise to unlawful sex discrimination, either direct or indirect.
Under the Offender Management Act 2007, the Secretary of State required to provide for the “supervision and rehabilitation of persons charged with or convicted of offences” (s1(1)(c)) and in particular to provide accommodation in APs (S.1(2)(d)).
The Equality Act 2010 defined and prohibited sex 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” s.13. Section 4 of the Act states that sex is a protected characteristic.
Where the provision of single sex services are different for women than for men, the condition set out in paragraph 26(2) of Schedule 3 must be satisfied. These include whether ‘the limited provision is a proportionate means of achieving a legitimate aim’ (26(2)(c). In other words, discrimination (both direct and indirect) is permitted provided it can be justified.
The Court of Appeal Decision
After the Divisional Court dismissed the claims for direct and indirect discrimination, the Appellant appealed the decision to the Court of Appeal. Dyson L, Elias LJ and Sharp LJ also dismissed the appeal finding that the Secretary of State had not discriminated in choosing to make different and more extensive provision for men rather than women. The Court considered the hypothetical example of a male and female prison from Reading. The female prisoner would be sent to the Reading AP, whereas the male prisoner would have to travel a further distance as there is no AP for men in Reading and whether a man would have a claim for direct discrimination. The Court held that this did not constitute direct discrimination for women or man as “[p]recisely the same rule is applied to both men and women but its effect depends upon the configuration of the available AP at the time the prisoner is sent there and the place where the prisoner has his or her community” [para. 45]. The Court considered this was not an instance of indirect discrimination, but rather Ms Coll was “seeking a form of positive discrimination, either requiring that there will be proportionately more APs for women than are available for men; or at the very least that there should be a policy of seeking to place the six current APs so as to maximize the extent to which women may be placed close to home. There is no specific policy to that effect with respect to men.” [para. 48].
The issues before the Supreme Court
The question for the Supreme Court was whether the Secretary of State’s provision for APs was direct or indirect discrimination and if so whether she had shown that the current AP arrangements are proportionate means of meeting a legitimate aim.
Counsel for the Appellant argued that by providing only six APs in England and Wales, most women would be sent to an AP further from than home than most men. The fact that some women lived closer to an AP than a man (as per the Reading hypothetical discussed by the Court of Appeal) was not fatal to a discrimination claim bought by a woman who was treated unfavourably because of her sex. It was not fatal to the Appellant’s discrimination claim that there were other instances where women would have lived closer to an AP than a man (as per the Reading hypothetical discussed in the Court of Appeal). Counsel took the Court of the seminal equality law case of Birmingham City Council v Equal Opportunities Commission  1 AC 1155. Due to a historical development, there were more single sex grammar boys’ schools in the area and so girls had to, on average attain a higher mark than the boys in order to go to grammar school.” Lord Goff concluded that while the Council is “knowingly continuing their acts of maintaining the various boys’ and girls’ selective schools, which inevitably results in discrimination against girls in the light of the great disparity in the number of places” p.1196H, and this constituted direct discrimination.
Counsel for the Respondent argued that Ms Coll was not sent to an AP due to her sex, but because of where she was from. This was not a case of direct discrimination as the same standards applied to both men and women: all prisoners were sent to APs closest to where they lived. Further, Counsel explained that the reason the Secretary of State had not sought to set out her reasoning for not having a disparate number of APs for men and women was that it would not be correct to do so while in litigation.
As the author of many of the leading judgments in equality law, Lady Hale took charge in this one-day hearing. She seemed to give short shrift to the Respondent’s argument that the Appellant had not suffered discrimination in being made to travel a further distance to an AP than a man would, the issue was whether the arrangements were justified.
While women only make up 5% of the prison population, the Supreme Court seemed troubled by the disparate number of APs for men and women and current set-up means many women were losing out on the valuable rehabilitative function that APs serve.
At a time when women’s criminal justice charities are pushing yet again for a decrease in the numbers of women in custody, this case provided a glimmer of hope that the Supreme Court may put pressure on the Ministry of Justice to provide a better routes out of custody for women serving long prison sentences.Back to News