by Dean Kingham
The Court of Appeal recently grappled with Approved Premises for women in the case of Coll v Secretary of State for Justice  EWCA Civ 328. The appellant is serving a mandatory life sentence for murder and brought the challenge on the basis that women have been the subject unlawful sex discrimination as a result of the AP regime. It was argued it was both direct and indirect discrimination. In the High Court, Justice Cranston upheld a separate submission that the Secretary of State (SSJ) was in breach of its public sector equality duty (S.149 Equality Act 2010). This finding was not appealed by the SSJ in the Court of Appeal.
The lack of approved premises (AP) to accommodate women prisoners released from prison on licence compared to the number available to male prisoners did not amount to direct discrimination because they were not treated different because of their sex. They were lawfully placed in different locations. The crux of the issue in this case was there were only 6 approved premises in the UK for female prisoners as opposed to 94 for men, a vast difference. The Appellant argued the fact that female prisoners were placed in AP’s far from their homes and families, which had a negative effect on reintegration and rehabilitation.
The flaw in the appellant’s direct discrimination argument was that exactly the same rule applied to both men and women, which depended on the location of the prisoner’s home and the available AP at the time. They were not treated differently because of their sex.
A presumption existed that the prisoner would be located as close to home as possible. The appellant argued the presumption was not followed as it should because of the lack of provision for women. The spaces were also provided on a single sex basis. The Court ruled this did not amount to indirect discrimination as it simply amounted to a complaint about the failure to adopt a further and distinct policy to deal with the particular problem faced by women alone resulting from the small number of AP’s available to them. This is not unsurprising, given the relatively low number of women prisoners compared to their male counterparts.
The Court said there had been no indirect discrimination and concluded that in even if there had been it could be justified because of the need to give weight to economic pressures and other public objectives (running of cost of an AP between £500,000-£750,000 per year, local community opposition to new AP’s).
Lord Justice Elias stated that had the Court found there to be indirect discrimination he would not have granted any relief as the declaration given in the High Court as part of the S.147 argument was sufficient.
This claim was brought before the appellant had been released and was residing in an AP; it is thought this weakened her argument that there had been discrimination and had impacted on the view of Lord Justice Elias as at paragraph 10 of the Judgment he said
“Since she is serving a mandatory for murder, her release will not take place until the Parole Board considers that it is appropriate to release her. In my view it is unlikely that she will be subsequently sent to an AP not least because the Parole Board is unlikely to release a prisoner who remains a significant risk to the public and typically lower than the risk required for release into an AP.”
Any experienced parole practitioner will confirm that routinely the Parole Board release high-risk life sentence prisoners to AP’s and/or alternative addresses. It has become common for Probation not to reduce risk from high to medium until the prisoner has been tested in the community for a considerable period. It remains to be seen what the Government will do to assist women released from prison given the need to successfully re-integrate into their local community. This finding of LJ Elias is somewhat unexpected, and I am surprised by it as all parole lawyers will be.
This post is part of our Women in Prison project – to raise awareness on the issues facing female offenders in our society. Find out more and contribute to our research here.