Coll v Secretary of State for Justice

The Court of Appeal dismissed an appeal by a prisoner alleging unlawful sex discrimination in the location and allocation of approved premises (APs). The court held that the relevant policies — single-sex accommodation and a presumption of placement as close to home as possible — are applied equally to men and women and therefore do not amount to direct discrimination. Indirect discrimination was not established because the complaint in substance sought positive remediation (more or differently located female APs) rather than relief against the disparate impact of a neutral policy; the policy choices were capable of justification as proportionate in light of legitimate aims including public protection, rehabilitation and resource constraints. The judge below had, however, been right to find a breach of the public sector equality duty (section 149 Equality Act 2010), and that finding was not challenged on appeal.

This was an appeal from the Administrative Court (Cranston J) challenging the arrangements for placing prisoners in approved premises (APs). The appellant, serving a life sentence, argued that the national configuration of APs resulted in unlawful sex discrimination: because there are many more male APs than female APs, women are inevitably less likely to be placed close to home. The appellant sought a declaration that the arrangements resulted in direct and indirect discrimination and relied on the Equality Act 2010 and related authorities.

Procedural posture: Appeal from the High Court, QBD, Administrative Court (Cranston J). The High Court had rejected the discrimination claims but had found a breach of the public sector equality duty (section 149 Equality Act 2010); that PSED finding was not challenged on appeal.

Issues before the Court of Appeal:

• Whether the placement and configuration of APs constituted direct sex discrimination under section 13 of the Equality Act 2010.
• Whether the arrangements constituted indirect discrimination under section 19 of the Equality Act 2010 and, if so, whether they were justifiable as a proportionate means of achieving a legitimate aim.
• The scope of the limited justification for sex-segregated services in paragraph 26 of Schedule 3 to the Equality Act 2010.
• Costs on cross-appeal.

Court's reasoning: The court analysed the distinction between direct and indirect discrimination and emphasised that the impugned policies were applied equally to men and women. Direct discrimination requires treatment "because of" sex; here the presumption of placement close to home applies to both sexes and its effect depends on the historic, piecemeal distribution of single-sex APs and the fact there are far fewer female prisoners. The court concluded that the appellant's argument in reality sought affirmative measures (more or re-located female APs) rather than relief against the application of a neutral practice and that such a claim does not fall within the Equality Act's ordinary indirect discrimination framework. The court accepted that separate single-sex services are capable of justification under paragraph 26(1) of Schedule 3 and that, on the facts, the current arrangements could be a proportionate means of achieving legitimate aims including public protection, rehabilitation and resource management. The PSED breach below was left in place but the appellant's application for a discriminatory-declaration was refused as unnecessary or inappropriate in the circumstances. The cross-appeal on costs was dismissed; the judge's exercise of discretion in awarding 60% of costs to the claimants was within the permissible range.

Appeal dismissed. The Court of Appeal held that the Secretary of State's policies of single-sex approved premises and of placing prisoners as close to home as possible do not amount to direct discrimination because they are applied equally to men and women; the appellant's complaint amounted to a request for positive redistribution of provision for women rather than a classic indirect discrimination claim, and the arrangements were in principle capable of justification as proportionate to legitimate aims. The High Court's finding of a breach of the public sector equality duty (section 149 Equality Act 2010) was not challenged.

On appeal from the High Court, Queen's Bench Division, Administrative Court (Cranston J), CO3842013. The High Court had rejected claims of direct and indirect discrimination but had found a breach of the public sector equality duty under section 149 Equality Act 2010; that PSED finding was not appealed.