S & Anor, R (on the application of) v Secretary of State for Justice

A Prison Service Instruction may be judicially reviewed where its guidance creates an unacceptable risk that governors will act incompatibly with Convention rights. However, where a deductions regime concerns broad social and economic policy, the domestic court should ordinarily apply the same wide margin of appreciation as the Strasbourg court. A regime requiring prisoners to contribute from voluntary enhanced earnings towards victim support was not manifestly without reasonable foundation and struck a fair balance under A1P1.

Article 14 indirect-discrimination claims require consideration of whether relevant groups are in significantly different positions and whether equal treatment is objectively justified. The section 149 equality duty requires substantive, proportionate consideration of relevant equality impacts, not a particular form of analysis or achievement of a specified result.

Two prisoners sought judicial review of PSI 48/2011 and PSI 76/2011, which implemented a regime under the Prisoners’ Earnings Act 1996 for deductions from enhanced earnings obtained by prisoners working outside prison for private employers.

The challenges alleged breaches of A1P1, Article 7 and Article 14 of the ECHR, and failure by the Secretary of State to comply with the public-sector equality duty in section 149 of the Equality Act 2010. The central issues were whether the Instructions unlawfully constrained governors’ discretion, whether the deductions were punitive or retrospective, whether equal treatment of male and female prisoners was indirectly discriminatory, and whether the equality assessment was legally adequate.

1. Discretion and review. Section 1(3) of the Prisoners’ Earnings Act 1996 and rule 31A of the Prison Rules confer a discretion on governors to impose deductions up to 40 per cent of enhanced earnings above £20 per week. Governors must act compatibly with Convention rights under section 6(1) of the Human Rights Act 1998. The Secretary of State’s Instructions could therefore be reviewed if liable to mislead governors or induce unlawful decisions. In practice, the Instructions preserved a genuine discretion to grant relief in exceptional cases.
2. A1P1. The deductions regime was lawful and pursued the legitimate aim of funding victim support. It was closely analogous to a hypothecated tax or compulsory contribution. The broad social and economic judgments involved attracted a wide margin of appreciation. The regime was not manifestly without reasonable foundation and did not impose an individual and excessive burden. Relevant factors included the voluntary nature of outside work, the £20 threshold, the limited 40 per cent maximum, the continuing benefit to prisoners, and the prospective operation of the regime.
3. The domestic courts should ordinarily apply the same margin of appreciation when assessing Convention rights under the HRA as the Strasbourg court would apply. In re G (Adoption: Unmarried Couple) did not require a different result. Its principal ratio concerned the irrationality and lack of objective justification of a blanket exclusion rule; the alternative reasoning favouring independent domestic assessment was treated as obiter and, in any event, did not apply here.
4. Article 7. The deductions were not a heavier criminal penalty. They were not connected with the offence in the manner required by Welch v United Kingdom, and their object and operation were those of a contributions regime rather than punishment.
5. Article 14. The claim of indirect sex discrimination failed. There was no sufficient evidence that female prisoners suffered a substantially greater detrimental impact. Men and women were in an analogous position by reference to the legitimate objective of funding victim support. Alternatively, equal treatment was objectively justified and proportionate, with the exceptional-relief discretion enabling governors to respond to individual needs.
6. Section 149. The Secretary of State had substantively considered equality impacts through successive consultation and equality assessments. The statutory duty is one to have due regard, not to achieve a result or follow a prescribed form. The assessment was neither unreasonable nor perverse.

The challenges to PSI 48/2011 and PSI 76/2011 were dismissed on all grounds.