The claimants were both pre-tariff indeterminate sentence prisoners currently held in open prisons. They complained that the lack of provision for women’s probation hostels, known as approved premises, amounted to unlawful discrimination under the Equality Act 2010. Further, that the SSJ had failed to discharge the Public Sector Equality Duty (PSED) by failing to apply his mind to the issue.
There are a large number of approved premises for male offenders across England and Wales, reflecting their greater number as compared to women offenders. There are only 6 approved premises for women in England, and none in Wales. Although the number of beds is proportionate to the number of women offenders, the limited geographical spread means that women required to reside in an approved premises as part of their licence may be many miles from home. It was argued that this impedes their effective resettlement.
In her 2007 report on women in the criminal justice system (the Corston Report) Baroness Corston recommended that the problem could be addressed by a larger number of smaller units in a greater number of geographical locations. A Joint Inspectorate Report in 2008 expressed the view that the current position is discriminatory. In July 2013 the House of Commons Justice Select Committee recommended that there be greater provision for women’s approved premises.
The Judge (Cranston J) found, however, that the position does not result in direct discrimination under s.13 of the Equality Act 2010 [54 - 57.] He noted that less favourable treatment requires comparing like with like. He considered there to be no evidence that women offenders valued approved premises, even if objectively they might benefit residents. Further, that proportionately fewer women are required to live at an approved premises. The average stay in an approved premises is relatively short (said to be 80 days) and the Judge considered there to be no evidence that the difficulties they face in returning to their families and support networks are any greater than would be the case were they released directly from prison without any residence condition. He further considered that the Claimant’s, who are some time away from release and currently assessed as medium risk, had suffered discrimination.
For similar reasons the Judge also rejected the claim of indirect discrimination [58-60.] He considered that the cost of smaller premises and difficulties in obtained planning permission justified any less favourable treatment as proportionate.
The Judge did find, however, that the SSJ is in breach of his duty to comply with the PSED, since at least 2008 [61-65.] The SSJ had not been able to point to any document to show that due regard had been paid to the issues raised by the various reports.
The Claimants were represented by Dinah Rose QC and Matthew Stanbury, instructed by Samuel Genen of Criminal Defence Solicitors, London