Unlawful Sex Discrimination in Approved Premises Provision: Analysis of Coll v. Secretary of State for Justice [2017] UKSC 40

Introduction

Coll v. Secretary of State for Justice ([2017] UKSC 40) is a landmark decision by the United Kingdom Supreme Court that addresses the issue of sex discrimination within the provision of Approved Premises (APs) for offenders released on licence. The appellant, referred to as Coll, a woman sentenced to life imprisonment for murder, challenged the geographical allocation of her AP placement, arguing that the lack of provision for women's APs in London constituted unlawful discrimination under the Equality Act 2010 and the European Convention on Human Rights.

Summary of the Judgment

The Supreme Court, comprising Lady Hale, Lord Clarke, Lord Wilson, Lord Hodge, and Lord Toulson, examined whether the provision of APs in Bedford exclusively for women offenders, far from their homes and support networks, amounted to direct sex discrimination. The court held that this arrangement did indeed constitute direct discrimination on the grounds of sex under the Equality Act 2010. Furthermore, the court found that the Secretary of State for Justice failed to justify this discriminatory practice as a proportionate means of achieving a legitimate aim, primarily because alternative solutions were not adequately explored to mitigate the discriminatory impact.

Analysis

Precedents Cited

The judgment extensively referenced several pivotal cases that shaped the court’s reasoning:

R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] 1 AC 1155: This case established that differential treatment based on sex, even if not intentional, can amount to direct discrimination under the Sex Discrimination Act 1975. The Court emphasized that disadvantaging a group because of their sex is unlawful, regardless of the intent behind the action.
Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11: This case clarified the “exact correspondence” test in direct discrimination, distinguishing between actual criteria and proxy characteristics that may result in discrimination.
James v Eastleigh Borough Council [1990] 2 AC 751: The court held that differential benefits based on sex could amount to direct discrimination, highlighting that separate provisions must be justified beyond mere cost-saving.
Essop v Home Office (Border Agency) [2017] UKSC 27: Although concerning a different context, this case was referenced to illustrate that discrimination does not require all members of a protected class to be disadvantaged, only that some members suffer a disadvantage.

These precedents collectively reinforced the principle that sex-based differential treatment in public services requires robust justification to avoid unlawful discrimination.

Legal Reasoning

The court's legal reasoning centered on the application of the Equality Act 2010, specifically sections dealing with direct discrimination and the public sector equality duty. The key points of reasoning include:

Direct Discrimination: The requirement for women offenders to reside in APs far from their homes constitutes direct discrimination on the basis of sex, as it imposes a greater detriment on women compared to men.
Public Sector Equality Duty: The Secretary of State failed to discharge their duty to eliminate discrimination and advance equality of opportunity for women within the provision of APs.
Justification of Discrimination: Even if the differential treatment could be seen as serving a legitimate aim (e.g., rehabilitation, public safety), the means chosen were not proportionate. The Secretary of State did not adequately explore alternative solutions to mitigate the discriminatory impact, such as increasing the number of women’s APs or distributing them more geographically.

The court emphasized that cost-saving alone cannot justify discriminatory practices, as highlighted in O'Brien v Ministry of Justice [2012] ICR 955. Moreover, the policy decision to maintain single-sex APs without addressing the resultant geographical disparities contributed to the unlawful discrimination.

Impact

The judgment has significant implications for the criminal justice system and public sector bodies:

Enhanced Scrutiny: Public authorities must rigorously assess the equality impacts of their policies, especially regarding provisions that could disproportionately affect specific groups.
Policy Re-evaluation: The decision mandates a re-examination of how APs are allocated, particularly for women, ensuring placements are as close to home as possible to support family connections and rehabilitation.
Legal Precedent: This case serves as a precedent for future discrimination claims within the criminal justice system, reinforcing that differential treatment based on sex must be justified with clear, proportionate aims and means.

Overall, the judgment underscores the necessity for equitable treatment in correctional facilities and the importance of considering the unique circumstances of women offenders in policy formulation.

Complex Concepts Simplified

Approved Premises (APs)

APs are facilities approved by the Secretary of State under the Offender Management Act 2007 where offenders reside while being assessed, supervised, or rehabilitated before full reintegration into society. They serve as transitional housing for those on licence from prison, intended to support their return to the community.

Direct Discrimination

Direct discrimination occurs when a person is treated less favorably than others specifically because of a protected characteristic, such as sex, race, or disability. In this case, women offenders were required to live in APs far from home solely based on their sex.

Public Sector Equality Duty

Under the Equality Act 2010, public sector bodies must actively work to eliminate discrimination, advance equality of opportunity, and foster good relations among different groups. Failure to do so, as seen in this case, can lead to unlawful practices.

Proportionate Means

For discriminatory practices to be lawful, especially those that differentially affect protected groups, the means of achieving the intended aim must be proportionate. This means there should be a reasonable balance between the benefits of the action and the harm caused by the discrimination.

Conclusion

The Supreme Court's decision in Coll v. Secretary of State for Justice marks a significant affirmation of anti-discrimination principles within the UK's criminal justice system. By recognizing the unlawful direct discrimination against women in the provision of APs, the court reinforces the necessity for public authorities to uphold the public sector equality duty diligently. This judgment not only mandates immediate changes in how AP placements are managed for women offenders but also sets a precedent ensuring that equality considerations are integral to policy-making processes. Ultimately, the case underscores the broader legal imperative to strive for fairness and equality, particularly for marginalized groups within institutional frameworks.