R (S and KF) v Secretary of State for Justice

This judicial review challenged Prison Service Instructions PSI 48/2011 and PSI 76/2011 implementing deductions under the Prisoners' Earnings Act 1996 (read with rule 31A of the Prison Rules) on Article 1 of Protocol 1 rights, Article 7 and Article 14 ECHR and for alleged failure to comply with the public sector equality duty under section 149 of the Equality Act 2010. The court held that the deductions regime is analogous to a hypothecated tax on enhanced earnings and that, in areas of social and economic policy of this kind, a wide margin of appreciation applies. The Instructions and associated guidance did not remove the unfettered discretion of governors and allowed relief in exceptional cases; governors are obliged by s.6 HRA to act compatibly with Convention rights and would have to disregard guidance if it required a breach. Applying established Strasbourg and domestic authority, the Instructions were not manifestly without reasonable foundation and did not breach A1P1, Article 7, Article 14 or s.149 Equality Act 2010.

The claimants, two prisoners working outside prison under enhanced wages arrangements, sought judicial review of PSI 48/2011 and PSI 76/2011, which required governors to impose (in policy terms as a norm) deductions of up to 40% of enhanced earnings above £20 per week to be paid to Victim Support, subject to narrow and exceptional relief. The legal framework comprised the Prisoners' Earnings Act 1996 (ss.1-2), rule 31A of the Prison Rules (which prescribed the £20 threshold, 40% maximum and payment to Victim Support), the Prison Act 1952 power of superintendence, and the Human Rights Act 1998 and Equality Act 2010 duties.

The issues were (i) whether the Instructions were incompatible with A1P1 because they unduly interfered with prisoners' possessions and failed to allow sufficient discretion to governors, (ii) whether Article 7 was engaged because the deductions imposed a heavier penalty retrospectively, (iii) whether Article 14 was breached by indirect discrimination against women, and (iv) whether the Secretary of State breached the s.149 public sector equality duty.

The court analysed Strasbourg and domestic authorities on the scope of A1P1 and the margin of appreciation in socio-economic and penal-policy matters and concluded that the deductions regime falls within a wide margin. The regime is comparable to a tax or contribution; it applies prospectively, applies to a voluntary activity (working out) and preserves a substantial net benefit to prisoners. The Instructions do not eliminate governors' discretion; the existence and practical exercise of an exceptional-relief discretion meant the guidance was not liable to induce unlawful decision-making and was not manifestly without reasonable foundation. On Article 7, the court found no requisite punitive connection to the original offence and distinguished Welch. On Article 14 and s.149, the court held that men and women in the relevant category are sufficiently analogous given the objective (raising funds for victim support), that there was no evidence of a significantly disproportionate impact on women, and that the Secretary of State had taken proportionate equality assessment steps (EIAs and consultations) and was entitled to a wide margin; the availability of case-by-case relief further addressed individual needs. The claim was dismissed in all respects.

The claim is dismissed. The court held that the Prison Service Instructions (PSI 48/2011 and PSI 76/2011), read with the Prisoners' Earnings Act 1996 and rule 31A of the Prison Rules, are compatible with Article 1 of Protocol 1, Article 7 and Article 14 ECHR and with the public sector equality duty under s.149 Equality Act 2010. A wide margin of appreciation applies in this socio-economic/penal context; the Instructions do not remove governors' discretion and are not manifestly without reasonable foundation.