Case No: C1/2014/0269/QBACF / C1/2014/0269(A)/FC3
Neutral Citation Number: [2015] EWCA Civ 328

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court, QBD, Administrative Court
Mr Justice Cranston
CO3842013
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 31st March 2015
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE ELIAS
and
LADY JUSTICE SHARP
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Between :

	COLL	Appellant	
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	Secretary Of State For Justice	Respondent	

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(Transcript of the Handed Down Judgment of
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Ms. Dinah Rose QC (instructed by Messrs Lound Mulrenan Jefferies Solicitors) for the Appellant
Mr. Oliver Sanders (instructed by The Treasury Solicitor) for the Respondent

Hearing dates : 4 March 2015
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Judgment
Lord Justice Elias : 
      Introduction
1.	When potentially dangerous criminals are released from custody, they may be required as a condition of the licence to reside in premises known as “Approved Premises” (APs).  These are defined in probation circular 37/2005 as:
“a criminal justice facility where offenders reside for the purposes of assessment, supervision and management in the interests of protecting the public, reducing reoffending and promoting rehabilitation”.
2.	The regime provided in APs is relatively strict and disciplined, imposing for example, curfew hours, and with extensive security measures. Residents can be required to undertake purposeful activities which form part of their supervision plan.  A requirement to undergo the enhanced supervision and discipline which living in the AP requires can only be imposed where it is a necessary and proportionate means of managing risk.  As Cranston J put it below (para 9):

“The core purpose of approved premises is the provision of enhanced supervision as a contribution to the management of those who pose a high or very high risk of harm to the public. The purpose of approved premises is not the provision of residential accommodation for its own sake but residence is an integral feature of the enhanced supervision and risk management offered…”
3.	All APs are now single sex institutions although there were some mixed APs until relatively recently. There are now ninety-four male APs located throughout England and Wales in major population centres (although there are none in Wiltshire or Hertfordshire).  By contrast there are only six female APs and in many parts of the country, including London and Wales, there are none. Their location is not the result of considered planning, however. It has been a random development.  Cranston J described how the current configuration came about (para. 15):
“The estate of approved premises has grown over a number of decades in a piecemeal fashion, from a combination of remand homes, former residential homes, decommissioned public buildings and charitable gifts.”
4.	He also pointed out that planning permission for new premises can be difficult to obtain.  There is typically local opposition arising from a perception that APs increase the risk of harm in the neighbourhood.
5.	There is a presumption that offenders should if possible be placed in APs as close as possible to their home probation area.  There are exceptions to this principle. For example, sometimes it is thought inappropriate because it would place the prisoner in the vicinity of his or her victim.  Also, in the case of female prisoners in particular, there is concern that they may be adversely affected by returning to their community if they have been in an abusive relationship or have been subject to a controlling partner.  In such cases placements away from the offender’s area will be desirable.  
6.	Placements in APs are generally for a short period of time. In 2012-2013 the average period was eighty days.  In general, offenders will prefer to be near their homes because it enables closer contact with family and friends and may assist in securing employment once they are released fully back into the community.  
7.	However, whilst a placement close to home is a realistic objective for most male prisoners, it is not achievable for female prisoners because of the limited number of APs made available for them.  There is no different policy applied to women but the lower demand for places in an AP limits their number.
8.	Not all residents in APs are prisoners on licence. There are also some persons on bail or serving a community sentence.  However, 90% of male residents are prisoners on licence and 80% of women residents fall into that category.  The usual criterion for licensed prisoners is that the prisoner poses a high or very high risk of harm to the public. This has been relaxed in the case of women to allow accommodation for more vulnerable cases in certain circumstances.  In fact only about one half of women residents fall into the high or very high risk category.
9.	In 2013 the six female approved premises had a total capacity of 112 places and an annual overall occupancy of just over 80%.  That compared with 94% for male approved premises.  The capacity and occupancy rates of each female AP were as follows: Liverpool (16), 91.5%; Bedford (17), 89.9%; Birmingham (20), 82.5%; Preston (12), 79.3%; Reading (22), 70.7%; and Leeds (25), 75.1%.
10.	The appellant, Ms Coll, is herself serving a mandatory life sentence for murder and is currently held at Her Majesty’s Prison Askham Grange.  She had a previous conviction for manslaughter in 1997.  A probation report in 2012 indicated that she may be suitable to reside in an AP or supported housing when she is released from custody.  Since she is serving a mandatory life sentence for murder, her release will not take place until the Parole Board considers that it is appropriate to release her.  In my view it must be unlikely that she will subsequently be 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. The Judge below held that this uncertainty, coupled with the fact that she was still some time away from likely release, meant that she did not have standing to mount a judicial review challenge to the policy.  I see the force of that conclusion but the Secretary of State is not now disputing her lack of standing and therefore I would not dismiss the application on this basis.  What is accepted, however, is that she cannot demonstrate that she has personally been subject to any discrimination of the kind alleged in the application, and it is likely that she will never be able to do so.
11.	The appellant complains that women have been the subject of unlawful sex discrimination as a result of the arrangements for placing prisoners in APs.  The basis of the claim is that the configuration of APs means that it is necessarily and inevitably harder to place women close to their home than men.  This is said to be both direct and indirect discrimination.   Ms Rose QC, counsel for the appellant, submits that it matters not how it is described since she accepts that even if it is direct discrimination, it is one of those relatively unusual cases where such discrimination can in principle be justified. So it matters not whether the proper analysis is direct or indirect discrimination, either way a justification defence is in principle available and the critical question is whether it is applicable here.   Her case is that the onus is on the Secretary of State to justify, and he has not provided any relevant evidence to sustain that defence here.  
12.	Mr Justice Cranston rejected these submissions.  He did not think there was any discrimination either direct or indirect; and even if there had been, he considered that it would have been justified.  He did, however, uphold a separate contention that the Secretary of State was in breach of the public sector equality duty contained in section 149 of the Equality Act 2010.  The Judge summarised what compliance with that duty would require in the circumstances of this case in paragraph 65 of his decision:
“What is required is that he address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it.  In the context of advancing equality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women having regard to their particular circumstances.  Nothing even approaching this has been done.”
13.	That finding of the Judge has not been challenged on appeal.  
The legislation 
14.	Section 2 of the Offender Management Act 2007 (“the 2007 Act”) makes the Secretary of State responsible for ensuring that sufficient provision is made throughout England and Wales for probation purposes: s. 2(1)(a).  “Probation purposes” are defined in section 1 of the 2007 Act to include “the supervision and rehabilitation of persons charged with or convicted of offences”: s 1(1)(c).  Those purposes include, in particular, assisting in the rehabilitation of offenders being held in prison, supervising persons released from prison on licence, and providing accommodation in APs: s.1(2)(b)-(d).
15.	In discharging his functions in relation to the provision of probation services, the Secretary of State must have regard to certain aims.  These include the protection of the public, the reduction of re-offending and the rehabilitation of offenders: s. 2(4) (a),(b) and (e). 
16.	Section 13 deals specifically with the approval of premises for probation purposes.  It provides that:
“(1) The Secretary of State may approve premises in which accommodation is provided-…
(b) for, or in connection with, the supervision or rehabilitation of persons convicted of offences.”
Under Section 13(3) the Secretary of State may make payments in connection with the operation, construction or renovation of APs.
17.	The Offender Management Act 2007 (APs) Regulations 2008, SI 2008, No. 1263 make provision for the regulation, management and inspection of approved premises.  Regulation 5 identifies the classes of persons allowed to be resident in approved premises and includes those released on licence.
18.	Regulation 7 imposes duties on the body responsible for the running of the AP to maintain satisfactory premises and run them “in a manner which promotes protection of the public and the reduction of re-offending.”  Section 7(1)(a)(iii) provides that:
“at least two members of staff must be present at approved premises at all times.”
On the assumption that there will be three eight hour shifts per day, that means that there will need to be a minimum of six staff in an AP however many prisoners are housed in the AP.
Discrimination under the Equality Act
19.	The Equality Act 2010 identifies two main kinds of discrimination, direct and indirect.  Section 13(1) defines direct discrimination as follows:
“a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Sex is one of the protected characteristics: section 4.  The effect of this provision is that there is direct discrimination where sex is the reason for the less favourable treatment.
20.	Section 19 defines indirect discrimination:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant particular characteristic of B’s.
(2) For the purposes of sub-section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if-
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
21.	In the context of sex discrimination, indirect discrimination is the imposition of a provision, criterion or practice which applies equally to male and female alike but which in its application disadvantages one sex disproportionately, and which cannot be justified in accordance with section 19(2)(d).
22.	Section 23(1) sets out a supplementary principle applicable in discrimination law: 
“On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”
23.	The assumption here is that if there is a material difference between the circumstances relating to men and women, it is likely to be this difference, rather than sex, which explains the different treatment. If it does not do so, it will not be material.
24.	This section would appear to suggest that before engaging on a discrimination exercise, it is necessary to identify the appropriate comparator. In practice, however, it is usually unhelpful to ask that question in the abstract and as a preliminary issue. The reason is that usually the comparator is a hypothetical rather than an actual person (as in this case), and there is likely to be a dispute about how he or she is to be identified.  Indeed, it is unlikely in most cases that the comparator can be identified without determining why the applicant was treated as she was; the two questions are inextricably interlinked. For example, if an employer dismisses an employee for misconduct, the employee may say that the reason for dismissal is her sex and that a similarly placed man would not have been dismissed.  The employer may say that the similarly placed man is one who has committed the misconduct in issue who would equally have been dismissed, and there is no discrimination.  The question whether the man is similarly placed can only be determined, therefore, by asking why the woman was dismissed, if it was because of her sex she succeeds because however the hypothetical comparator is framed, it is clear that he would have been treated differently.  It is not, therefore, necessary to determine the appropriate comparator at all and it is usually better not even to engage in the exercise.  This point was put with his customary lucidity by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] UKHL 11; [2003] ICR 337 paras. 7-11. 
25.	In general, direct discrimination cannot be justified but indirect discrimination can.  The onus is on the person applying the provision, criterion, or practice to show that it is justified i.e. that it is a proportional way of achieving a legitimate aim.  There are, however, exceptional circumstances where even direct discrimination can be justified.  Ms Rose submits that this is the case here, a defence being provided even for direct discrimination in para. 26 of schedule 3 to the Act.  The Secretary of State denies that para. 26 would provide a justification defence but denies that there is any direct discrimination requiring justification. I consider the scope of para. 26 below.
26.	The alleged unlawful act in this case was committed contrary to section 29 (6) of the 2010 Act which provides as follows:
“A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination…”
27.	A public function is defined in section 31(4) as “a function of a public nature for the purposes of the Human Rights Act 1998.”  It is common ground that the decision where to place APs would involve the exercise of a public function.
Reports
28.	We were taken to various reports relating to the treatment of women in prisons but in my view they are only of limited relevance to this case.  The report most strongly relied upon by Ms Rose was a Joint Inspectorate report by the Chief Inspectors of probation, prisons and the constabulary.  This made the following observation:
“… in terms of successful rehabilitation and integration back into the community, location was probably more important than the number of beds available and that, therefore the current provision was inadequate…  The number and location of hostels for women perpetuated the discrimination experienced by women in prison in that a higher proportion than men were forced to stay a long way from home.  For women, in particular enforced separation from their families and support networks compounded the problems associated with their offending, e.g. relationships and mental health… The main element of discrimination against female prisoners and by extension against female hostel residents was the distance between their family and community and where they were located during the custodial and licenced supervision elements of their sentences”
Of course, in most cases the custodial period in prison is likely to be much longer than any period spent in an AP.  Accordingly, if and to the extent that rehabilitation is adversely affected by incarceration or placement away from the prisoner’s community, it is the time spent in prison which will make the greatest contribution.
29.	 The report stated that the location of women’s hostels meant that because travel to them was expensive, slow and unlikely to be direct, potential residents would face a journey of several hours to visit their children.  In addition, since most hostel residents had lost their own accommodation, regaining suitable accommodation for themselves and their children in a different part of the country would seem insurmountable.  
30.	Ms Rose also relied upon other reports, including a report from Baroness Corston in 2007 entitled “Women with particular vulnerabilities in the criminal justice system” which suggested that rehabilitation would be more likely to succeed with women if they could be accommodated in prisons and APs close to home.
31.	This may well be true, although ultimately it is for the Secretary of State to assess and evaluate recommendations of this nature.  In my view, the appellant cannot in this appeal complain that the Secretary of State is failing to maximise the chances of women being effectively rehabilitated.  That is a matter for the Secretary of State and even if he accepts that the recommendation is sound, he must consider the extent to which reconfiguring the present stock of female accommodation may undermine other objectives or eat disproportionately into resources.  What the appellant can say, however, is that many women, she being one, may reasonably consider that being accommodated close to home, with the advantages that brings, is a benefit which in practice is far more readily available to men than to women.
Discussion
32.	The only way to eliminate the disproportionate effect altogether is to have the same number of hostels for men as women.  That, however, would mean that there would be 94 premises for 112 female residents.  Each AP would cater for one or two persons.  Since there must be at least two staff on duty at all times, that would mean a staff of six to cater for these prisoners.  Ms Rose recognises how unrealistic that solution would be. 
33.	Her principal submission, and the way in which the argument was advanced below, is that some additional APs should be created for women.  This would not eradicate the disproportionate impact but would mitigate it.  Alternatively, she says that the current six APs could be relocated in more heavily populated urban areas, like London, so as to increase the likelihood of women prisoners being closer to their homes.   If that were done it would necessarily mean, however, that whilst some women would be closer to home, others who currently live near an AP being closed down would in future be further away.
34.	In my judgment when considering the discrimination argument, it is important to understand why the current arrangements disadvantage women.  It is because of three interlinking factors: first that male and female prisoners are placed in different single sex institutions; second that there are overwhelmingly more men than women in prison and consequently proportionately many more men who need to be accommodated in APs; and third, that the policy is in general to place prisoners close to home where that can be done.  If any one of these factors were otherwise, there would be no disproportionate effect.  If women could be placed in an AP with men, each prisoner could be allocated a place close to home (assuming that to be desirable).  Similarly if equal numbers of women and men were convicted, there would be a similar demand on APs and no doubt similar numbers of APs distributed throughout the country.  And if the prisoners were allocated to APs on a random basis, without any consideration of their home base, the outcome would be equally arbitrary in all cases irrespective of sex.  
35.	The second factor is a matter of fact and the other two are matters of policy. There is no complaint about either matters of policy.  It is conceded that there is good reason to accommodate men and women separately, and the appellant positively asserts the desirability of prisoners being accommodated as close to their homes as possible.  Indeed, the complaint is in essence that the Secretary of State has not achieved that objective for women as fully as he ought to have done; he should have taken positive steps to mitigate the adverse effect resulting from the difference in demand for APs between men and women.
The judgment below.
36.	The Judge concluded that there was no discrimination, either direct or indirect.  His analysis was essentially the same for both forms of discrimination.  It rested upon the view that the two sets of circumstances could not properly be compared because like was not being compared with like: the situation of women prisoners was very different from men, including the fact that the criteria for admitting women to APs were different.
37.	He also held that there was no indirect discrimination essentially for the same reasons but added that even if there were, it was justified. The cost of a larger number of smaller units and the fact that there would be local community hostility to new premises being opened outweighed the relatively minor disadvantage of a short stay (on average eighty days) when contact with home and family was limited.
Direct Discrimination 
38.	Ms Rose submits that the arrangements selected by the Secretary of State give rise to direct discrimination.  She cites as an example a man and woman, both living in London and both placed in an AP.  The man will probably be placed in London with at least relatively easy access to his family and home area; the woman will be placed in Reading some distance away.  The only reason she is not placed in London is that she is female.
39.	I do not accept that this constitutes direct discrimination. The Secretary of State has not in that hypothetical example placed her further from her home because she is female; he has adopted a practice equally applicable to men and women that there will be a presumption that they will be placed as close to home as possible.  How that impacts on male and female prisoners depends upon where they live and where the APs are located.  If Ms Rose were right then this practice would also constitute sex discrimination against a man in certain circumstances. For example, if one takes a male and female prisoner each living in Reading next to the female AP, the effect of the policy is that a man will be accommodated in premises further from his home than the woman.  On Ms Rose’s argument, he too has a claim of direct discrimination because he is treated less favourably than she is. The same policy gives rise to direct discrimination against both men and women depending on their circumstances.
40.	This underlines the defect in the argument. It is not legitimate in a case of direct discrimination to focus on the application of the policy in particular contexts.  It is of course the case that men and women are differently treated as a consequence of being accommodated in separate APs.  But that is not the discrimination about which the appellant complains.  She says that the direct discrimination arises from the fact that women are placed further from their homes than men. But that is not the case.   Precisely the same rule is applied to both men and women but its effect depends upon the configuration of the available AP at the time the prisoner is sent there and the place where the prisoner has his or her community.  Save that men and women are located in different institutions, a form of discrimination which Ms Rose accepts is lawful, and they are not thereafter being treated differently because of their sex.
41.	There is an additional problem. In so far as the complaint is about particular discrimination which might arise in particular circumstances or sets of circumstance, it is not a complaint about the scheme as a whole and judicial review is not an appropriate remedy.  Since the appellant is not herself the victim of discrimination, no relief would be appropriate.
42.	There were two further arguments advanced by the respondent which, however, I would not accept. The first was that in order to constitute direct discrimination there must be less favourable treatment; it is said that in allocating premises the Secretary of State cannot be said to be subjecting the prisoners to treatment within the meaning of section 13.  I agree with the Judge below that this argument cannot stand with the decision of the House of Lords in Birmingham City Council v Equal Opportunities Commission [1989] A.C 1155.  In that case the Council provided separate grammar schools in the city for boys and girls, but more places were available for boys than girls. The consequence was that girls had to perform better in order to gain a place. This was held to be unlawful direct discrimination resulting from the less favourable treatment of girls.  That is similarly the position here (save that there is no complaint that disproportionately fewer women than men are sent to APs).  The allocation to different institutions involves treatment. If, for example, a decision had been taken to locate APs for women in as remote a region as possible and as far from their homes as possible, that would surely have been treating them differently from men. 
43.	The other submission effectively relies upon the argument accepted by Cranston J. It is said that the position of male and female APs is not comparable, not only because of the different and less rigorous risk requirements for women, but also because in other ways too women prisoners are treated differently from men. This is in substance an argument that the situations are not comparable within the meaning of section 23. 
44.	I see some force in that submission, but am not ultimately persuaded by it. I do not think that the differences are material for the purposes of this particular alleged discrimination. I do not see, for example, why the fact that fewer women in APs are assessed to be of high or very high risk of danger to the public ought to bear on the question whether, other things being equal, they should where possible be accommodated close to home, just as men are.  The different risk categories are not material to that issue and would not explain the difference in treatment.
45.	However, for reasons I have given, I do not accept that direct discrimination is established.
Justification for direct discrimination.
46.	As I have mentioned, Ms Rose submitted that even if there were direct discrimination, there would unusually be a potential defence of justification found in para 26 of schedule 3 to the Equality Act. Ironically, the Secretary of State denies that there is such a defence, whilst denying that there was any direct discrimination. Although the point does not now directly arise, since I have found that there was no direct discrimination to be justified, I will briefly consider the issue. 
47.	 Paragraph 26 is as follows:
“(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—
(a)a joint service for persons of both sexes would be less effective, and
(b)the limited provision is a proportionate means of achieving a legitimate aim.
(2)A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if—
(a)a joint service for persons of both sexes would be less effective,
(b)the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and
(c)the limited provision is a proportionate means of achieving a legitimate aim.
(3)This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.”
48.	I would agree that paragraph (1) of this provision would justify the separate accommodation of the sexes; the arrangements would operate less effectively if both sexes were accommodated in the same APs and therefore direct discrimination in the form of sex segregation is permitted.  Moreover, in my view paragraph (3) extends the defence to allocation of APs because that function would be related to the provision of separate sex services. Mr Sanders contended otherwise suggesting that the particular function was too remote from the service, but in my view the words “relate to” are broad and would in principle cover all administrative decisions which are inextricably linked with the policy of creating sufficient APs to meet the needs of both sexes separately.  It would still be necessary for the allocation to be a proportionate means of achieving a legitimate aim. That is the same language as the justification test in indirect discrimination, and I consider its application to the circumstances of this case later.
49.	Ms Rose in fact submitted that paragraph (2) was applicable. I confess that I have some difficulty in seeing precisely what that paragraph is envisaging. Unlike paragraph (1), it is allowing not only services segregated by sex but different services. My provisional view is that this would not apply here not least because I do not think that it could be said to be not reasonably practicable, as opposed to less effective, to provide the service to both sexes together, and indeed that has been done in the past. Furthermore, I doubt whether the location of the service in a different place constitutes providing the service differently. In my view paragraph (2) envisages a difference in the nature of the service provided rather than the place where it is provided.  However, it matters not whether this paragraph applies or not if, as I have found, paragraph (1) applies.
Indirect discrimination 
50.	There are three features of this aspect of the appeal which should be noted.  First, Ms Rose does not suggest that the disadvantage to women resulting from a lower demand for this service could be eliminated.  That would require APs for women to hold one or two prisoners only which would patently be absurd.  Her case is that the Secretary of State should have sought to minimise the disadvantage. 
51.	Second, although she contends that one solution mitigating the discriminatory effects may be to open more APs with fewer places than are available in the current APs, she does not say that this is the only potential way of minimising the disadvantage.  She submits before us that one possible outcome would be for the number of APs to remain the same but be differently located. This would require some of the existing APs being closed and new ones being opened elsewhere.
52.	Third, she does not contend that the current arrangements are necessarily inappropriate or incapable of justification.  Her submission is that the Secretary of State has not adduced sufficient (she would say, any) evidence to amount to justification in this case.  She is willing to accept that following a proper analysis of the discriminatory effects – precisely, in fact, the analysis which would follow from the performance of the Public Sector Equality Duty which the Secretary of State now accepts has never been properly conducted – it may become apparent that the current arrangements are justified.  The purpose of the appeal, as she said in argument, was in part at least to put pressure on the Secretary of State to carry out his duty to conduct the equality assessment.
53.	Fourth, consistently with that submission, the only remedy she seeks is a declaration to the effect that “the current lack of provision of probation service approved premises for women offenders in England and Wales results in direct and indirect discrimination.”  I observe that this formulation only relates to her principal argument that more premises should be provided rather than the alternative which seeks not to increase the provision but to locate it differently.
54.	In order for indirect discrimination to be established it is necessary for there to be a provision, criterion or practice which is applied equally to men and women, which operates to the disadvantage of women, and which cannot be justified.  It is critical to identify the relevant provision, criterion or practice which is alleged to have that effect.  
55.	Ms Rose identified it in the following way. She said that there was a practice that: 
“If an appropriate residence condition is attached to your licence you must reside in an approved premises.”
56.	If this is indeed the appropriate way to identify the provision, criterion or practice then in my view the Secretary of State can plainly show that this is a proportionate means of achieving a legitimate aim.  The justification for requiring residence in an AP is the better protection of the public and the aim of achieving the prisoner’s rehabilitation by gradual integration into the community. That is as true for the particular APs located in their current positions as it would be if they were located elsewhere. In so far as the complaint is that women are not being required to locate to APs placed elsewhere, that is not a complaint about the application of an apparently neutral provision which in practice operates to the detriment of women; it is a complaint about a failure to adopt a new and different practice of maximising for women as a group the degree of proximity to home areas.  There is no specific or deliberate aim to maximise the position for men either, although the number of APs is such that they are likely to be reasonably close to home wherever they are placed.
57.	As I have said, it seems to me that the relevant practice in issue here which causes the adverse effect is the fact that accommodation is provided on a single sex basis coupled with the presumption that the prisoner shall be accommodated as close to home as possible. But these policies are both obviously justified, and the appellant does not suggest otherwise.  Indeed, the complaint is that the presumption is not carried into effect as efficaciously as it might be because of the lack of suitable provision for women. 
58.	In my judgment that complaint does not fall within the concept of indirect discrimination at all.  Indeed, it is seeking a form of positive discrimination, either requiring that there will be proportionately more APs for women than are available for men; or at the very least that there should be a policy of seeking to place the six current APs so as to maximise the extent to which women may be placed close to home.  There is no specific policy to that effect with respect to men. 
59.	So on analysis what the appellant is complaining about is not the disparate impact which the application of a common policy or practice has created. Rather it is 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 APs available for them.  
60.	In my judgment the Equality Act does not bite on this complaint.  I do not see how it could justify positive discrimination of the kind sought here, and in any event, that is not how the case is put.  In so far as there could be any positive discrimination argument, it would I think have to be a Convention argument  along the lines that the article 8 rights of women are engaged and that there is discrimination contrary to article 14. The contention would have to be that these women are in a different position from the male prisoners because they are relatively so few, and that this is one of those article 14 cases which require significantly different cases to be treated differently:  Thlimmenos v Greece (2001) 31 EHRR 15 para.44.  It is to be noted that it was indeed suggested below that there was an infringement of article 8 read with article 14 but the point was not pursued before Cranston J, apparently because it was thought to add nothing of substance to the Equality Act claim.  I would only observe that even if some such claim could be advanced, the test of proportionality in such cases is very broad and confers a very wide margin of appreciation to the state: see in that context the valuable discussion by Sales J in a factually analogous case, S and RF v Secretary of State for Justice [2012] EWHC 1810 (Admin) paras 91-93.  I have no doubt that it would be satisfied here.  It is inconceivable in my view that Strasbourg would require the government to pay for, and thereafter incur the additional running costs of, new premises at the expense of other important public objectives when the benefits to women are essentially limited, namely that they will be closer to their families for eighty days or so. Furthermore, this will arguably involve a form of discrimination against men, who will be required to remain in APs accommodating a larger number of prisoners.
Justification
61.	Cranston J also found that there was no indirect discrimination under the Equality Act.  In my view his instincts were right although I do not adopt his reasoning which was based on the notion that the circumstances of the men and women were different.  He also held that if there was discrimination, it was justified (para. 60): 
“ …it seems clear to me that the provision, criterion or practice in this case is a proportionate means of achieving a legitimate aim. That is because the model Ms Rose QC advanced on the claimants' behalf comprises a larger number of smaller, more geographically distributed approved premises for women. One factor, albeit only one factor, in this balance is cost: see Ministry of Justice v O'Brien [2013] UKSC 6; [2013] 1 WLR 522, [63], [70] (including the commentary on Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330; [2012] ICR 1126). No matter how small, the annual running cost of approved premises is said to be in the region of £500,000-£750,000 per annum. In an era of financial austerity this is a real challenge. Quite apart from cost is the local community opposition which the establishment of new approved premises is likely to engender. On the other side of the balance are the present arrangements. There is the disadvantage of persons not being in approved premises close to their home and community. In her statement Ms Mansfield explains how for some closeness to their home area would be an advantage. But there is the underutilisation of female approved premises so that, if it is an advantage to be in approved premises, female offenders released on licence will readily find a place. The period of stay is relatively short (80 days on average). In my view the current provision of women's approved premises can be regarded as constituting a proportionate measure.” 
62.	Ms Rose was highly critical of that conclusion and says that it is wholly inadequate. She emphasises, and the Secretary of State accepts, that the human rights’ test of proportionality is not as rigorous as the justification defence under the Equality Act, as the Supreme Court has recently affirmed in Akerman-Livingstone v Aster Communities Ltd (formerly Flourish Homes Ltd) [2015] UKSC 15.   She correctly points out, as the judge recognised, that the O’Brien case confirms a line of EU authority to the effect that financial savings cannot alone constitute a legitimate justification for imposing rules which discriminate against women.  
63.	The proper understanding of the scope of this principle was described in the following terms by Rimer LJ in Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330 para.66 in a judgment with which Arden LJ and Ryder J agreed:
“Accepting, as I make clear I do, that the guidance of the Court of Justice is that an employer cannot justify discriminatory treatment 'solely' because the elimination of such treatment would involve increased costs, that guidance cannot mean more than that the saving or avoidance of costs will not, without more, amount to the achieving of a 'legitimate aim'. That is entirely unsurprising. To adopt a simple example given by Mr Short, it is hardly open to an employer to claim to be entitled to justify the discriminatory payment to A of less than B simply because it would cost more to pay A the same as B. Such treatment of A could not, without more, be a 'legitimate aim'.”
In O’Brien Lady Hale left open the question whether this was a correct analysis of the relevant principle, but it is binding on us.
64.	I do not think it can be said that the only objective is saving scarce resources in a time of austerity. It is also to ensure that men and women are in similarly appointed establishments; and there is a real risk of a discrimination claim if they are not. Given the limited disadvantage which women suffer, since the average stay in an AP is only eighty days, I think the finding of justification is in principle sustainable.  But the exercise is in my view artificial.  The real premise of Ms Rose’s argument is that it is unlawful not to treat these women differently because their circumstances are different. Were that failure to be unlawful under the Equality Act, I would expect the law on justification in such cases to allow principles of proportionality which broadly reflect the approach of the Strasbourg court in such cases, and would allow greater weight to be given to the economic pressures and the claims of other public objectives.
Discretion to grant a declaration
65.	Even if the appellant had succeeded on her indirect discrimination argument, I would not have granted her any relief in the unusual circumstances of this case. The declaration is a discretionary remedy and in my judgment the declaration sought by the appellant would not in practice do more than tell the Secretary of State that he has to comply with the Public Sector Equality Duty.   A declaration to that effect was given below and not challenged by the Secretary of State on appeal.  The Secretary of State remains under an obligation to give effect to it. Ms Rose complains that he has done nothing although we heard no evidence about that. In any event I can see why he may have thought it premature to do anything until this appeal has been concluded in case our judgments impinge upon what he has to do.  I could see merit in the declaration if it were successfully contended that whatever the appropriate configuration of female APs, the current arrangements could not in any circumstances be said to constitute justified discrimination.  At least a declaration would then have the merit of demonstrating that the current arrangements are necessarily unlawful.  But that would not be an appropriate declaration given the concession – plainly correctly made – that they might be capable of justification.
66.	For all these reasons, therefore, I would reject this appeal. 
Cross appeal on costs.
67.	There is an entirely distinct issue which is the subject of the cross appeal.  The Secretary of State challenges the decision of Cranston J to award the claimants below 60% of their costs. (There were two claimants, one of whom has not appealed the decision.)  He says that this is one of those exceptional cases where the court should interfere in the exercise of what he accepts is a broad discretion.  The claimants had succeeded on the grounds that the Secretary of State had failed to comply with the Public Sector Equality Duty but had failed in establishing either direct or indirect discrimination.  These were very important elements of the case, and the decision of the judge has not given proper credit for the costs involved in successfully resisting that claim. 
68.	The judge adopted an issues based approach and there is no complaint about that. His reasons for reaching the conclusion he did were as follows: 
“The claimant was successful in the PSED aspect of the case. The discrimination aspect of the case failed but a significant part of it was relevant to the PSED aspect. The order seeks to reflect this: M v Croydon LBC [2012] 1 WLR 2607,[62].”
69.	The reference to the Croydon case was to some comments from Lord Neuberger MR in relation to a case where the claimant is successful in part following a contested hearing. He said(para. 62) that in such a case:
“..when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions.”
70.	It is well established that this court will not readily interfere with the exercise of the Judge’s discretion. In Johnsey Estates (1990) Limited v Secretary of State for the Environment [2001] EWCA Civ 6535 Chadwick LJ, in a judgment with which the other judges agreed, summarised the principle as follows (paras 21 – 22):
“…an appellate court should not interfere with the judge's exercise of discretion merely because it takes the view that it would have exercised that discretion differently.
22. The last of those principles requires an appellate court to exercise a degree of self restraint. It must recognise the advantage which the trial judge enjoys as a result of his feel for the case which he has tried. Indeed, as it seems to me, it is not for an appellate court even to consider whether it would have exercised the discretion differently unless it has first reached the conclusion that the judge's exercise of his discretion is flawed. That is to say, that he has erred in principle, taken into account matters which should have been left out of account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse.”
71.	Mr Sanders submits that the judge did err in this case. First, he did not make a finding as to who was the successful party.  The general rule under CPR Pt 44.2(2) is that the successful party should recover costs from the unsuccessful party.  The judge noted in this case that both parties claimed to have been successful but he made no finding on the point. Second, the judge erred in failing to have regard to the costs incurred by the Secretary of State in resisting the unsuccessful claims. Whilst the costs of the claimants were reduced because of their lack of success, there was no further allowance made for the Secretary of State’s success. Finally, it is said that the judge failed to give proper or adequate reasons to explain how he reached his decision.  
72.	I would reject each of these submissions. The judge is not obliged in every case formally to decide who is the successful party; it may be a somewhat artificial exercise in a case like this.  CPR Pt 44.2(2)(b) states in terms that the court may make a different order in place of the general rule and an issues order falls into that category.   In my judgment a judge is entitled to say that a party has won on an important issue and should have the costs relating to it; to that extent it may be said that this is an implied recognition that it is the successful party.   It seems to me that this is essentially what Cranston J did.  He then reduced the recoverable costs to take account of the claimants’ failure with respect to the discrimination claims.  There was a discretion but no obligation on the judge to require the claimants to pay the costs of the Secretary of State on the issues on which he successfully resisted the application.  In Summit Property Ltd v Pitmans (A Firm) [2001] EWCA Civ 2020 para. 17 Longmore LJ recognised that this may be appropriate but it is far from being the usual or required rule:
“It is thus a matter of ordinary common sense that if it is appropriate to consider costs on an issue basis at all, it may be appropriate, in a suitably exceptional case, to make an order which not only deprives a successful party of his costs of a particular issue but also an order which requires him to pay the otherwise unsuccessful party's costs of that issue, without it being necessary for the court to decide that allegations have been made improperly or unreasonably.”
	I therefore see no error in the approach of the judge in failing to require the claimants to pay the costs of the Secretary of State on the discrimination issues. 
73.	It is clear that the judge took the view that much of the costs were common to all issues in the case and he considered that it was reasonable that the claimants should recover those. Again, that is a perfectly proper exercise of discretion: see the comment of Jackson J, as he was, in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2280(TCC) para.72(viii).  The judge is in the best place to decide what costs were common to all the issues. This was plainly a feature which weighed significantly in the 60% assessment.
74.	As to the final ground of appeal, I accept that the Judge’s reasoning was somewhat sparse. But in my view it was sufficient to explain why he came to the conclusion he did, and it does not disclose any error of law.  Whilst the apportionment of 60% was perhaps higher than many judges might have awarded, it was not in my opinion outside the legitimate range open to the Judge.  
75.	I would therefore dismiss the cross appeal.
76.	LADY JUSTICE SHARP:
I agree.
77.	THE MASTER OF THE ROLLS:
I also agree.