Coll, R (on the application of) v Secretary of State for Justice

Factual and Procedural Background

The Appellant, a female life-sentence prisoner in her fifties, spent most of her adult life in The City. When eligible for release on licence, she feared (and ultimately experienced) placement in an Approved Premises (AP) far from her family because no women’s AP existed in The City. In January 2013 she commenced judicial-review proceedings seeking declarations that the configuration of women’s APs was unlawfully discriminatory and that the Respondent Secretary of State had breached the public-sector equality duty under section 149 Equality Act 2010.

At first instance, Judge Cranston dismissed the discrimination claim but declared a breach of the equality duty. The Court of Appeal upheld dismissal of the discrimination claim. By the time of the Supreme Court hearing, the Appellant had been released and required to reside for nine months in a Bedford AP, allegedly confirming the detrimental effects complained of. The matter reached the Supreme Court on the Appellant’s further appeal.

Legal Issues Presented

1. Whether the geographical distribution and limited number of women’s Approved Premises constitute unlawful direct or indirect sex discrimination contrary to the Equality Act 2010 and/or Articles 8 and 14 of the European Convention on Human Rights.
2. If discrimination exists, whether paragraph 26 of Schedule 3 to the Equality Act 2010 (the “separate services” exception) justifies the differential provision.
3. Whether the Respondent discharged the burden of showing that any discriminatory effect is a proportionate means of achieving a legitimate aim.

Arguments of the Parties

Appellant's Arguments

• Requiring a woman to live in an AP far from home is a detriment that women are vastly more likely to suffer; this is direct discrimination on grounds of sex.
• The case is analogous to R v Birmingham City Council, where differential access (here, to APs near home) constituted unlawful discrimination.
• Paragraph 26 permits “separate but equal” services only if the limitation is a proportionate means of achieving a legitimate aim; the Ministry of Justice never properly considered less discriminatory alternatives (e.g., smaller, geographically dispersed women’s APs or redesignating existing men’s APs).
• Cost alone cannot justify discrimination, and breach of the public-sector equality duty undermines any claim of justification.

Respondent's Arguments

• Not all women offenders are placed far from home; therefore exact correspondence between the disadvantage and the protected characteristic is absent, precluding a finding of direct discrimination (relying on Patmalniece).
• Male and female offenders are not proper comparators because risk profiles and admission criteria differ.
• Even if discrimination exists, paragraph 26(1) (“separate but equal services”) applies and the arrangement is justified: mixed-sex APs would be less effective; the low number of female residents makes wider provision impracticable; developing additional premises is financially prohibitive and faces local opposition.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Direct discrimination found. The Court held that women released on licence face a substantially higher risk than men of being placed far from home because of the geographic distribution of single-sex APs. This constitutes less favourable treatment “because of sex,” satisfying section 13 Equality Act 2010.

2. Comparator analysis. Rejecting first-instance reasoning, the Court agreed with the Court of Appeal that male and female offenders released on licence are in materially similar circumstances for placement purposes; differences in risk profile are irrelevant to the discrimination question.

3. Distinguishing “exact correspondence.” The Respondent’s reliance on Patmalniece was misplaced because the criterion here is sex itself, not a proxy; therefore exact overlap between disadvantage and protected characteristic is unnecessary.

4. Application of paragraph 26 Schedule 3. The Court accepted that single-sex APs serve legitimate aims—protecting vulnerable women and operational practicality—and that mixed premises would be less effective. However, paragraph 26 still demands that any limited provision be a proportionate means of achieving those aims.

5. Lack of proportionality evidence. The Ministry of Justice had not properly assessed the discriminatory impact or explored feasible alternatives (e.g., smaller dispersed units or repurposing men’s APs). Cost considerations alone cannot justify discrimination (O’Brien). Because the Respondent failed to discharge the burden of showing proportionality, the paragraph 26 defence failed.

6. Indirect discrimination unnecessary. Having found direct discrimination, the Court held that the claim need not be re-characterised as indirect discrimination.

7. Remedy. While acknowledging that the existing scheme could be justified with proper analysis, the Court declared the present provision unlawful because it discriminates and has not been justified. This declaration suffices without mandating specific structural changes.

Holding and Implications

HELD: Appeal ALLOWED. The Supreme Court declared that the current provision of Approved Premises for women constitutes unlawful sex discrimination and has not been justified under paragraph 26 of Schedule 3 to the Equality Act 2010.

Implications: The declaration obliges the Respondent to re-evaluate the distribution and number of women’s APs, conducting a lawful proportionality analysis consistent with the public-sector equality duty. No immediate restructuring was ordered, and the Court acknowledged that a differently evidenced scheme could yet be justified. The decision clarifies the application of direct discrimination principles and the limits of cost-based justifications in public service provision, but it establishes no new categorical rule beyond the factual matrix of APs.