Coll v Secretary of State for Justice

Arrangements for placing prisoners in approved premises were not direct or indirect sex discrimination merely because the smaller female estate made placement close to home less likely. Direct discrimination requires less favourable treatment because of sex; a common policy is not transformed into direct discrimination by its uneven effects in particular locations. Indirect discrimination requires an identified provision, criterion or practice applied equally to both sexes that places one sex at a particular disadvantage and lacks justification. A complaint that the State should adopt an additional policy to improve women’s position is instead a claim for positive discrimination, outside the Equality Act claim as framed. Proportionality may take account of public protection, rehabilitation, operational structure, cost and the limited duration of the disadvantage.

The appellant, serving a mandatory life sentence, challenged arrangements for placing prisoners in approved premises. Women had fewer approved premises, so they were less likely than men to be accommodated near home. She alleged direct and indirect sex discrimination under the Equality Act 2010, seeking a declaration.

The Administrative Court rejected both discrimination claims but found a breach of the public sector equality duty under section 149, which was not appealed. The appeal concerned the characterisation of the alleged discrimination, justification, relief and, separately, the costs order.

1. Discrimination. The appeal was dismissed. The arrangements did not constitute direct discrimination. The Secretary of State applied the same presumption to men and women that prisoners should, where possible, be placed close to home. The resulting distance depended on the prisoner’s location and the available single-sex premises, not on treating a prisoner less favourably because of sex.
2. For discrimination claims, it is generally unhelpful to determine the hypothetical comparator as a preliminary question. The comparator and the reason for treatment are usually interlinked: Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] UKHL 11. Differences between male and female residents, including risk categories, were not material to the alleged disadvantage.
3. The indirect-discrimination claim failed because the relevant provision, criterion or practice had not been identified as a neutral practice producing the disadvantage. The single-sex structure and the presumption of placement near home were justified policies. The real complaint was that the Secretary of State had failed to adopt an additional policy, such as more numerous or differently located women’s premises, to mitigate the effect of the limited female estate. That was positive discrimination, not indirect discrimination under section 19.
4. Alternatively, the existing arrangements were capable of justification. Legitimate aims included public protection, rehabilitation, maintaining similarly appointed establishments and avoiding unequal provision. Costs alone could not justify discrimination, but cost was not the only objective: Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330. The short average stay and limited disadvantage supported proportionality.
5. The court’s provisional view was that paragraph 26(1) of Schedule 3 to the Equality Act 2010 could justify separate-sex approved premises and related allocation decisions. A possible Convention claim under articles 8 and 14 would also face a broad proportionality test and wide margin of appreciation. Even if discrimination had been established, a declaration would not have been granted because the existing declaration already required compliance with the public sector equality duty.
6. Costs. The cross-appeal was dismissed. An issues-based order allowing recovery of 60% of the claimants’ costs was within the judge’s discretion. There was no obligation to require payment of the Secretary of State’s costs on the unsuccessful discrimination issues.

1. High Court, Queen’s Bench Division, Administrative Court: Mr Justice Cranston rejected the direct and indirect discrimination claims, held that any indirect discrimination would have been justified, found a breach of the public sector equality duty under section 149 of the Equality Act 2010, and awarded the claimants 60% of their costs.
2. Court of Appeal (Civil Division): The appeal and the Secretary of State’s cross-appeal on costs were dismissed.