Griffiths v Secretary of State for Justice

The absence of geographically distributed approved premises for women did not, on the evidence, constitute direct or indirect sex discrimination. The relevant comparison had to recognise the materially different characteristics of male and female offender populations, including risk profiles and sentence lengths. Any indirect disadvantage was in any event justified as a proportionate means of achieving a legitimate aim, having regard to cost, local opposition, underused female premises and the short average residence. However, the Secretary of State had failed to comply with the continuing public sector equality duty. That duty required a substantive assessment of the disadvantage faced by women, its significance and possible mitigation.

Two women serving indeterminate sentences challenged the Secretary of State’s provision of approved premises. There were six women’s premises in England, none in London or Wales, compared with 94 men’s premises distributed throughout England and Wales. The claimants alleged direct discrimination, indirect discrimination and breach of the public sector equality duty under the Equality Act 2010, together with related Convention and Welsh-language arguments.

The central issues were whether the Secretary of State’s provision involved treatment or a provision, criterion or practice capable of amounting to discrimination, whether any indirect discrimination was justified, and whether the equality duty had been properly discharged.

1. Direct discrimination. The Secretary of State’s provision of approved premises involved treatment for the purposes of the Equality Act 2010. However, the claimants had not shown less favourable treatment because of sex. The male and female offender populations differed materially, including in risk profiles, sentence lengths and eligibility for licence conditions. The claimants also had not established that the Secretary of State had treated them personally, since release to approved premises remained contingent on future Parole Board decisions and their risk assessments.
2. Indirect discrimination. The claimants failed to establish the necessary comparative disadvantage. In any event, the existing provision was a proportionate means of achieving legitimate aims. Relevant considerations included the substantial construction and running costs of additional small premises, local opposition, the underuse of existing women’s premises, the ready availability of places when required, the short average stay and the fact that geographical separation could sometimes assist rehabilitation.
3. Statutory interpretation. The Offender Management Act 2007 imposed no implied obligation to achieve a particular geographical spread of approved premises. Its legislative history could not support such an implication.
4. Public sector equality duty. The duty in section 149 was continuing and applied to functions developing organically as well as to discrete decisions. It required the Secretary of State to assess possible disadvantage, its significance and measures which might mitigate it. The duty was not outcome-orientated and did not require a minutely detailed equality impact assessment, but it was an important standard for public decision-making. No adequate evidence showed that the Secretary of State had undertaken the required analysis since 2008. The claims therefore succeeded on this ground, and the Secretary of State was required to undertake the necessary analysis.

First-instance judicial review decision. The court rejected the direct and indirect discrimination grounds but upheld the challenge based on the public sector equality duty.