R (Griffiths) v Secretary of State for Justice

The claim challenged the Secretary of State’s arrangements for approved premises for women released on licence, asserting direct and indirect sex discrimination and breach of the public sector equality duty under the Equality Act 2010. The court considered the statutory framework for offender management (Offender Management Act 2007, Criminal Justice Act 2003) and the equality provisions (Equality Act 2010, in particular sections 13, 19 and 149).

The judge held that the Secretary of State had not unlawfully discriminated against the claimants, either directly or indirectly, because the differences in placement patterns between men and women reflected legitimate distinctions in the offender population and admission criteria. However, the court found that the Secretary of State had not shown compliance with the public sector equality duty (s.149): there was insufficient evidence that the Secretary had given due regard since 2008 to the impacts of approved premises provision on women, including Welsh women, and he was required to undertake the necessary equality analysis.

Background and parties: The claimants are two women serving indeterminate custodial sentences who face the prospect of release to approved premises. They challenged the Secretary of State for Justice, with the Equality and Human Rights Commission intervening. The applicants relied on reports and official material criticising the geographic concentration of female approved premises and asserting adverse impacts on women’s rehabilitation and family ties.

Nature of the claim / relief sought: The judgment does not set out a specific form of remedy sought in precise terms. The claim challenged the lawfulness of the Secretary of State’s provision of approved premises for women on grounds of direct and indirect sex discrimination and breach of the public sector equality duty; the exact orders or declarations sought are not stated in the judgment.

Issues framed:

1. Whether the Secretary of State’s current arrangements for women’s approved premises amounted to direct discrimination under s.13 Equality Act 2010;
2. Whether they amounted to indirect discrimination under s.19 Equality Act 2010 and, if so, whether they could be justified as a proportionate means to a legitimate aim;
3. Whether the Secretary of State had complied with the public sector equality duty in s.149 Equality Act 2010;
4. Ancillary points about Welsh-language and Welsh-resident women and the statutory duties under the Offender Management Act 2007 were addressed.

Court’s reasoning: The court accepted that the Secretary of State performs public functions in relation to approved premises and that the Equality Act and related case-law govern the analysis. On direct discrimination the judge held that there was treatment capable of comparison but concluded that differences in provision reflected relevant differences in the female offender population (for example sentence lengths and risk profiles) and the tailored admission criteria applied to women following Probation Circular 16/2008; accordingly the claimants could not show less favourable treatment "because of" sex in the sense required. On indirect discrimination, even if a provision, criterion or practice disadvantaged women, the court concluded the existing arrangements could be a proportionate means of achieving legitimate objectives, having regard to costs, local opposition to new premises and the low demand profile for high-risk female placements. On the public sector equality duty (s.149), however, the judge found that the Secretary of State had not demonstrated that he had given due regard to equality impacts since 2008: there was no adequate evidence of the requisite analysis, reassessment or strategy to address the repeatedly flagged issues. The judge therefore concluded that while discrimination claims failed, the Secretary of State needed to undertake and document the appropriate equality analysis.

Contextual remarks: The judgment took account of major policy reports (Corston Report, Joint Inspection Report, parliamentary committee reports) and recognised the practical and financial constraints on creating new approved premises while stressing the continuing nature of the equality duty.

This first-instance claim was partially rejected: the court dismissed the claimants’ direct and indirect discrimination claims but concluded that the Secretary of State had failed to demonstrate compliance with the public sector equality duty (s.149 Equality Act 2010). The court required the Secretary of State to undertake the equality analysis necessary to assess and, where appropriate, address the impacts on women (including Welsh women) of the approved premises estate.