Brooke v Secretary of State for Justice

Prisoners liable to removal from the United Kingdom are not in an analogous position to prisoners who are not removable. Early removal is a means of implementing a distinct immigration sanction, whereas home detention curfew relaxes imprisonment. A policy based on removability therefore does not, without more, constitute nationality discrimination under Articles 5 and 14 of the European Convention on Human Rights. A public authority’s duty under section 71(1)(b) of the Race Relations Act 1976 is a duty to have due regard to equality and good relations, not a duty to achieve a particular result. The duty may be satisfied where the decision-maker substantively considers the relevant effects in the context of the policy.

The claimant, a British citizen serving determinate prison sentences, challenged a Prison Service policy under which prisoners serving four years or more were presumed unsuitable for home detention curfew unless exceptional circumstances existed. He compared that regime with the statutory early-removal regime applicable to prisoners liable to removal from the United Kingdom.

He alleged discrimination contrary to Articles 5 and 14 of the European Convention on Human Rights and contended that the Secretary of State had failed to comply with section 71(1)(b) of the Race Relations Act 1976. The central issues were whether the two classes of prisoner were in analogous situations and whether the Secretary of State had given due regard to equality and good relations when formulating the policy.

1. The claim for judicial review was dismissed. The policy did not unlawfully discriminate under Articles 5 and 14 of the European Convention on Human Rights.
2. Prisoners liable to removal were not in an analogous situation to prisoners who were not removable. The statutory distinction was based on removability, arising from immigration status and offending, rather than nationality itself. Early removal was intended to implement removal from the United Kingdom and free prison resources; home detention curfew was a relaxation of imprisonment.
3. The comparison relied on by the claimant was not assisted by the different consequences which sentencing might have for nationals and non-nationals. The policy did not confer a special privilege of home release on foreign prisoners. They remained detained and were removed from prison to facilitate expulsion.
4. Even if a difference in treatment based on nationality had been established, the policy pursued legitimate public interests and was justified. Parliament had created distinct regimes under sections 246 and 260 of the Criminal Justice Act 2003.
5. The duty under section 71(1)(b) of the Race Relations Act 1976 was a duty of direction, requiring substantive consideration of equality of opportunity and good relations, rather than a duty to achieve a particular outcome or adopt prescribed wording. The evidence showed that Ministers had considered the potential disparity between removable and non-removable prisoners and the possible effects on different groups.
6. The relevance of context meant that the authorities concerning equality duties in other policy settings did not require a different result. The evidence sufficiently established compliance with section 71(1)(b). The claimant was ordered to pay the defendant’s reasonable costs, subject to section 11 of the Access to Justice Act 1999. Permission to appeal was refused.

First-instance judicial review proceedings in the High Court (Administrative Court). The claim was dismissed and permission to appeal was refused.