R (on the Application of S and Another) v Secretary of State for Justice

8/12/2019 R (on the Application of S and Another) v Secretary of State for Justice

1/36

2/27/13 LexisLibrary: Document

www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/results/tocBrowseNodeClick.do?tocCSI=274668&rand=0.23762272248368654&clickedNode=TAABAABA 1/36

Helpdesk: 0845 370 1234

Find out more

Find Related CasesFind Related JournalsFind Related CommentaryFind AllER TranscriptsFind AllER Digests

[2013] 1 All ER 66

R (on the application of S and another) v Secretary of State forJustice

[2012] EWHC 1810 (Admin)

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

SALES J

9, 10 MAY, 3 JULY 2012

Human rights Margin of apprec iation Domestic courts

Whether domestic court could have regard to margin of appreciation Human Rights

Act 1998, ss 1, 21.

Human rights Right to peaceful enjoyment of possessions Deductions from

prisoners' earnings for work for private employer outside prison except in exceptional

circumstances Money raised to be paid to victim support group Whether breach of

right to peaceful enjoyment of possession Human Rights Act 1998, Sch 1, Pt II, art 1.

Human rights Retrospective punishment Penalty heavier than that 'applicable' at

time offence committed Deductions from prisoners' earnings for work for private

employer outside prison except in exceptional circumstances Whether breach of

Convention right Human Rights Act 1998, Sch 1, Pt I, art 7.

Sex discrimination Prisons Deductions from prisoners' earnings for work for private

employer outside prison except in exceptional circumstances Money raised to be paid

to victim support group Whether excessive and disproportionate detrimental effecton female prisoners Whether indirect discrimination Human Rights Act 1998, Sch 1,

Pt I, art 14.

Discrimination Public sector Duty to have due regard to equality Sex Deductions

from prisoners' earnings for work for private employer outside prisonexcept in

exceptional circumstances Whether Secretary of State failing to have regard to

effect on equality of opportunity Equality Act 2010, s 149.

Section 1aof the Prisoners Earnings Act 1996 made provision for the introduction of a

regime governing deductions from prisoners' earnings. In 2011 the 1996 Act was brought

into force, following an Equality Impact Assessment (EIA) carried out by the Secretary

of State. The deductions regime envisaged by the Act was implemented by thepromulgation of r 31Abof the Prison Rules, which (when read with s 1 of the 1996 Act)

provided that where a prisoner undertook enhanced work for a private employer, the

excess of their wages above 20 a week might be subject to a deduction by the prison

governor of up to 40 per cent, which would be paid to a body providing

a Section 1, so far as material, is set out at [6], below

b Rule 31A, so far as material, is set out at [13], below

[2013] 1 All ER 66 at 67

support for the victims of crime. Before the promulgation of that rule, a second EIA was

published by the Secretary of State. After further EIAs, two Prison Service Instructions,

PSI 48/2011 and PSI 76/2011 (which replaced the former), were issued by the

Secretary of State to give guidance to prison governors on the exercise of their

discretion to levy deductions. In the EIAs, no major objection had been raised based on

any alleged disproportionate impact upon female prisoners as opposed to male prisoners.
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%25149%25sect%25149%25num%252010_15a%25&service=citation&A=0.8950036858861561http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.3740633530664009http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.3740633530664009http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.2612944401710966http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25II%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.42806673270751117http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%251%25sect%251%25num%251998_42a%25&service=citation&A=0.31806266229117164http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%251%25sect%251%25num%251998_42a%25&service=citation&A=0.31806266229117164http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=NORMCITE(DIG_12D27Jul)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id5http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=NORMCITE(TRAN_12D27Jul)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id4http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Journals%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id2http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id1http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id1http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%251%25sect%251%25num%251996_33a%25&service=citation&A=0.7759783992466249http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%25149%25sect%25149%25num%252010_15a%25&service=citation&A=0.8950036858861561http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.3740633530664009http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.2612944401710966http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25II%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.42806673270751117http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%2521%25sect%2521%25num%251998_42a%25&service=citation&A=0.47704519522751054http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%251%25sect%251%25num%251998_42a%25&service=citation&A=0.31806266229117164http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=NORMCITE(DIG_12D27Jul)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id5http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=NORMCITE(TRAN_12D27Jul)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id4http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Commentary%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id3http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Journals%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id2http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&backKey=20_T16796985327&homeCsi=274668&A=0.6303742285412909&urlEnc=ISO-8859-1&&remotekey1=CASE-REF([2013]%201%20All%20ER%2066)&remotekey2=All%20Subscribed%20Cases%20Sources&dpsi=000D&cmd=f:exp&service=QUERY&origdpsi=000D&linktype=RCL&id=id1http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/home/home.do?randomNum=0.7752769209989875


2/36



The instructions provided that prison governors should make the deductions at the full

40 per cent of the excess enhanced earnings above 20 a week, subject only to 'very

exceptional circumstances' (according to PS 48/2011) or 'exceptional circumstances'

(according to PS 76/2011). The instant proceedings concerned two claims for judicial

review of the instructions. The first claim was brought by S who was a male prisoner in

an open prison serving an indeterminate prison sentence. He had a full-time job with a

private employer doing manual work outside the prison. The second claim was brought

by F, who was a female prisoner in an open prison, serving a sentence of four years.

She attended college on release from prison for two days a week, and could only work

part-time if she was able to find work outside prison. She claimed that she had decidednot to work outside prison because of the levy, travel costs, and the like, although she

had not approached the governor of her prison to see if any relief from the levy might

be granted in the particular circumstances of her case. The claimants submitted that

the instructions were unlawful as they violated art 1cof the First Protocol to the

European Convention on the Protection of Human Rights 1950 (as set out in Sch 1to

the Human Rights Act 1998), which concerned the right to property. In that regard,

they argued that the Secretary of State could not rely on the margin of appreciation

which would be afforded by the European Court of Human Rights to the United Kingdom.

They submitted that the 'margin of appreciation' concept was only applicable to

international courts and not to the domestic court. In that regard, they argued that

'Convention rights' (as defined by ss 1dand 21(1)eof the 1998 Act) were conceptuallydistinct from the application of the margin of appreciation. They also submitted that the

Secretary of State had not conducted an exercise weighing up all the relevant matters

bearing on whether it was legitimate in terms of art 1 of the First Protocol for the

guidance to purport to limit the circumstances in which prison governors should not

make deductions of the full amount authorised by r 31A to a narrow class of exceptional

cases, and for that reason also no margin of appreciation should be allowed. In addition,

F submitted that the deductions amounted to the imposition of a heavier penalty than

the one applicable at the time the criminal offence had been committed contrary to art

7fof the Convention; that although the instructions applied equally to men and women

in prison they in practice had an excessive and disproportionate detrimental effect on

women and so involved unlawful indirect discrimination contrary to art 14g

of theConvention; and that the instructions had been issued by the Secretary of State

without his having due regard to the need to promote equality for women, as he was

obliged to do

c Article 1, so far as material, is set out at [41], below

d Section 1, so far as material, is set out at [51], below

e Section 21, so far as material, is set out at [52], below

f Article 7, so far as material, is set out at [75], below

g Article 14, so far as material, is set out at [79], below

[2013] 1 All ER 66 at 68

under s 149hof the Equality Act 2010, since he had failed to consider whether there

had been any disproportionate effect of the instructions on women.

Held (1) Domestic courts were required to interpret Convention rights by applying the

same margin of appreciation when assessing the lawfulness of the conduct of public

authorities as the European Court would apply when assessing the lawfulness of the

conduct of the national authorities from the perspective of an international court.

Sections 1(1) and 21(1) of the 1998 Act defined Convention rights as being the rights

set out in the Convention and the F irst Protocol as they had effect for the time being inrelation to the United Kingdom. That effect was determined, in part, by the operation of

the margin of appreciation applied by the European Court in determining whether there

had been any violation of Convention rights. The definition of Convention rights in the

1998 Act therefore incorporated the concept of the margin of appreciation. The ambit
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%25149%25sect%25149%25num%252010_15a%25&service=citation&A=0.6999101061210022http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.6033365533261321


3/36



of the Convention rights was directly governed by the concept of the margin of

appreciation as it fell to be applied under the European Court's case law. The absence

of a balancing exercise by the Secretary of State conducted expressly by reference to

art 1 of the F irst Protocol (or any other Convention right) did not have the consequence

that the Secretary of State and prison governors were not entitled to the benefit of the

wide margin of appreciation (see [53][54], [56][59], [64], below); Re P (adoption:

unmarried couple)[2008] NI 310and Manchester City Council v Pinnock (No 2)[2011] 1

All ER 285considered.

(2) The deductions proposed to be made from prisoners' enhanced earnings were closelyanalogous to a tax to be levied on them, hypothecated to the purposes of victim

support. They fell within the margin of appreciation afforded to a state in setting rules

which called for broad social and economic judgments, involving the requirement of

payment of taxes or compulsory contributions for legitimate public purposes. Moreover,

there was a reasonable relationship of proportionality between the means employed and

the aim sought to be realised and a fair balance had been struck between the general

interests of the community and the requirements of the protection of the individual

prisoners' fundamental rights, such that prisoners subject to deductions from their

enhanced earnings did not bear an individual and excessive burden. Accordingly, the

instructions did not violate art 1 of the First Protocol and did not give guidance to

prison governors which would lead them to take decisions which would violate art 1 (see

[44], [45], [47], below);James v UK(1986) 8 EHRR 123 andNational, Provincial Building

Society v UK[1997] STC 1466, and National Federation of Self-Employed v UK(1978)

15 DR 198 applied.

(3) In order for art 7 of the Convention to apply, the measure in question had to be

connected with a criminal offence in the requisite sense, and be punitive, in its object

or effect, in relation to the offence committed by the prisoner. The deductions regime

did not satisfy those requirements. It was not because of his commission of his offence

that a prisoner became subject to the deductions regime, but because he had made a

choice when in prison to seek work outside prison. The deductions regime did not have

the features indicative of a punitive object or effect; rather it had all the hallmarks of a

tax or contributions regime

h Section 149, so far as material, is set out at [93], below

[2013] 1 All ER 66 at 69

aimed at prisoners generally, applicable only when they chose to work on release from

prison (see [77][78], below); Welch v UK(1995) 20 EHRR 247 distinguished.

(4) In considering claims of indirect discrimination under art 14 of the Convention, the

court should consider whether there was a general rule or practice being applied to two

or more relevant groups which were not in a relevantly analogous position, and whether

the similarity in treatment was objectively justifiable, in the sense that it had a

legitimate aim and bore a reasonable relationship of proportionality to that aim. In theinstant case, the legitimate objective of the deductions regime was to raise funds to

assist in providing support for the victims of crime. There was no significant difference

to be drawn between male and female prisoners, as general categories of person, in

terms of pursuing that objective. It followed that there was no breach of art 14 (see

[82], [84], below); Thlimmenos v Greece(2000) 9 BHRC 12, and Hoogendijk v

Netherlands(2005) 40 EHRR SE22 applied.

(5) Where a decision-maker gave substantive consideration to equality issues, the

evaluation would only be treated as unlawful where it was unreasonable or perverse. A

decision-maker was entitled to focus on the main aspects of equality impacts which

presented themselves for consideration, rather than engaging in a minutely detailed

procession of inquisition into all possible equality impacts and ramifications of a decision.In the instant case, there was no breach of s 149 of the 2010 Act. The Secretary of

State had plainly sought to have regard to the equality impacts of the deductions

regime before bringing it into effect. In the course of consultation, there had been no

major objection raised based on alleged disproportionate impact upon female prisoners
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%259%25year%252000%25page%2512%25sel1%252000%25vol%259%25&service=citation&A=0.5119596936740288http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23STC%23year%251997%25page%251466%25sel1%251997%25&service=citation&A=0.766177872120894http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%251%25year%252011%25page%25285%25sel1%252011%25vol%251%25&service=citation&A=0.6303925019932974http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23NI%23year%252008%25page%25310%25sel1%252008%25&service=citation&A=0.7745141117515945


4/36



as opposed to male prisoners. The Secretary of State had reviewed such information as

was reasonably available regarding possible equality impacts and his assessment could

not be described as perverse or unreasonable (see [98][100], below); R (on the

application of Baker) v Secretary of State for Communities and Local Government

[2008] LGR 239applied.

Notes

For deductions and levies in respect of enhanced wages work, see 36(2) Halsbury's

Laws(4th edn) (reissue) para 578.

For the Human Rights Act 1998, Sch 1, Pt I arts 7, 14, Pt II, art 1, see 7(1) Halsbury's

Statutes(4th edn) (2011 reissue) 768, 769, 774.

For the Equality Act 2010, s 149, see 7(1) Halsbury's Statutes(4th edn) (2011 reissue)

1297.

Cases referred to in judgments

Ambrose v Harris (Procurator Fiscal, Oban), HM Advocate v M, HM Advocate v G

[2011] UKSC 43, [2011] 1 WLR 2435.

Ashingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.

AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, (2011) 122 BMLR 149,

[2011] 3 WLR 871.

Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681,

[2001] 2 WLR 817, PC.

Burden v UK(2006) 21 BHRC 640, (2008) 24 BHRC 709, ECt HR.

Carson v UK(2010) 29 BHRC 22, ECt HR.

Chapman v UK(2001) 10 BHRC 48, ECt HR.

Depalle v France(2010) 54 EHRR 535, ECt HR.

[2013] 1 All ER 66 at 70

DH v Czech Republic(2007) 23 BHRC 526, ECt HR.

Dickson v UK(2007) 24 BHRC 19, ECt HR.

Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 All ER 653, [2009] AC

367, [2008] 3 WLR 636.

Evans v UK(2007) 22 BHRC 190, ECt HR.

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986]

AC 112, [1985] 3 WLR 830, HL.

Gbel v Germany[2011] ECHR 35023/04, ECt HR.

Hoogendijk v Netherlands(2005) 40 EHRR SE22, ECt HR.

Humphreys v Revenue and Customs Comrs[2012] UKSC 18, [2012] 4 All ER 27,

[2012] 1 WLR 1545.

Jahn v Germany (2005) 42 EHRR 1084, [2005] ECHR 46720/99, ECt HR.

James v UK (1986) 8 EHRR 123, [1986] ECHR 8793/79, ECt HR.

Jordan v UK (2001) 11 BHRC 1, ECt HR.
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2511%25year%252001%25page%251%25sel1%252001%25vol%2511%25&service=citation&A=0.2599321741427937http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2579%25year%251986%25page%258793%25sel1%251986%25vol%2579%25&service=citation&A=0.6780041174227611http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2599%25year%252005%25page%2546720%25sel1%252005%25vol%2599%25&service=citation&A=0.8486327253904155http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%254%25year%252012%25page%2527%25sel1%252012%25vol%254%25&service=citation&A=0.6930152251128279http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKSC%23year%252012%25page%2518%25sel1%252012%25&service=citation&A=0.6886006867115374http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2504%25year%252011%25page%2535023%25sel1%252011%25vol%2504%25&service=citation&A=0.0509608630936611http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23year%251986%25page%25112%25sel1%251986%25&service=citation&A=0.5377634402791307http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%253%25year%251985%25page%25402%25sel1%251985%25vol%253%25&service=citation&A=0.8577142417236332http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2522%25year%252007%25page%25190%25sel1%252007%25vol%2522%25&service=citation&A=0.721221453767466http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23year%252009%25page%25367%25sel1%252009%25&service=citation&A=0.17346030306095928http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%251%25year%252009%25page%25653%25sel1%252009%25vol%251%25&service=citation&A=0.16074564327276852http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252008%25page%2557%25sel1%252008%25&service=citation&A=0.735985103836186http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2524%25year%252007%25page%2519%25sel1%252007%25vol%2524%25&service=citation&A=0.2876389446698032http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2523%25year%252007%25page%25526%25sel1%252007%25vol%2523%25&service=citation&A=0.6514288256407917http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2510%25year%252001%25page%2548%25sel1%252001%25vol%2510%25&service=citation&A=0.650578592643706http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2529%25year%252010%25page%2522%25sel1%252010%25vol%2529%25&service=citation&A=0.9625622947319012http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2524%25year%252008%25page%25709%25sel1%252008%25vol%2524%25&service=citation&A=0.7022704166146224http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2521%25year%252006%25page%25640%25sel1%252006%25vol%2521%25&service=citation&A=0.5910169938600619http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%251%25year%252003%25page%25681%25sel1%252003%25vol%251%25&service=citation&A=0.07373155073224702http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%252%25year%252001%25page%2597%25sel1%252001%25vol%252%25&service=citation&A=0.934446783511727http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BMLR%23sel2%25122%25page%25149%25vol%25122%25&service=citation&A=0.6471891740985877http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKSC%23year%252011%25page%2546%25sel1%252011%25&service=citation&A=0.9301832821882189http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2578%25year%251985%25page%258225%25sel1%251985%25vol%2578%25&service=citation&A=0.0517268524255271http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKSC%23year%252011%25page%2543%25sel1%252011%25&service=citation&A=0.9557874656288707http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%25149%25sect%25149%25num%252010_15a%25&service=citation&A=0.3230934919560817http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23part%25I%25sched%251%25schedule%251%25num%251998_42a%25&service=citation&A=0.7906034254027665http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23LGR%23year%252008%25page%25239%25sel1%252008%25&service=citation&A=0.49304972278844195


5/36



Laduna v Slovakia App No 31827/02 (13 December 2011), ECt HR.

Manchester City Council v Pinnock (No 2) (Secretary of State for Communities and

Local Government, intervening) [2010] UKSC 45, [2011] 1 All ER 285, [2011] 2 AC

104, [2010] 3 WLR 1441.

McKerr, Re [2004] UKHL 12, [2004] 2 All ER 409, [2004] 1 WLR 807.

McShane v UK(2002) 35 EHRR 593, [2002] ECHR 43290/98, ECt HR.

Miss Behavin' Ltd v Belfast City Council [2007] UKHL 19, [2007] 3 All ER 1007, [2007]

NI 89, [2007] 1 WLR 1420.

National and Provincial Building Society v UK [1997] STC 1466, ECt HR.

National Federation of Self-Employed v UK(1978) 15 DR 198, E Com HR.

P (adoption: unmarried couple), Re [2008] UKHL 38, [2008] NI 310sub nomRe G

(Adoption: Unmarried Couple)[2009] AC 173, [2008] 3 WLR 76.

Pretty v UK (2002) 12 BHRC 149, ECt HR.

R v DPP, ex p Kebeline, R v DPP, ex p Rechachi [1999] 4 All ER 801, [2000] 2 AC 326,

[1999] 3 WLR 972, HL.

R v Horncastle, R v Marquis [2009] UKSC 14, [2010] 2 All ER 359, [2010] 2 AC 373,

[2010] 2 WLR 47.

R (on the application of Bailey) v Brent London BC [2011] EWCA Civ 1586, [2012]

LGR 530.

R (on the application of Baker) v Secretary of State for Communities and Local

Government [2008] EWCA Civ 141, [2008] LGR 239.

R (on the application of Begum) v Head Teacher and Governors of Denbigh HighSchool [2006] UKHL 15, [2006] 2 All ER 487sub nom R (on the application of SB) v

Governors of Denbigh High School[2007] 1 AC 100, [2006] 2 WLR 719.

R (on the application of Brown) v Secretary of State for Work and Pensions[2008]

EWHC 3158 (Admin), [2009] PTSR 1506, DC.

R (on the application of Carson) v Secretary of State for Work and Pensions, R (on

the application of Reynolds) v Secretary of State for Work and Pensions [2005]

UKHL 37, [2005] 4 All ER 545, [2006] 1 AC 173, [2005] 2 WLR 1369.

R (on the application of Domb) v Hammersmith and Fulham London BC [2009] EWCA

Civ 941, [2009] LGR 843.

R (on the application of SRM Global Master Fund LP) v HM Treasury Comrs [2009]

EWCA Civ 788, [2009] All ER (D) 297 (Jul).

R (on the application of Suppiah) v Secretary of State for the Home Dept [2011]

EWHC 2 (Admin), [2011] All ER (D) 31 (Jan).

R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the

[2013] 1 All ER 66 at 71

Home Dept[2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23.

R (on the application of W) v Birmingham City Council, R (on the application of M) v

Birmingham City Council[2011] EWHC 1147 (Admin), [2012] LGR 1.

Stec v UK(2006) 20 BHRC 348, ECt HR.
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2520%25year%252006%25page%25348%25sel1%252006%25vol%2520%25&service=citation&A=0.6101728543499241http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23LGR%23year%252012%25page%251%25sel1%252012%25&service=citation&A=0.0459734546463243http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWHCADMIN%23year%252011%25page%251147%25sel1%252011%25&service=citation&A=0.803844417854776http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%252%25year%252004%25page%25323%25sel1%252004%25vol%252%25&service=citation&A=0.8036367125740325http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%253%25year%252004%25page%25785%25sel1%252004%25vol%253%25&service=citation&A=0.3094541524616349http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252004%25page%2526%25sel1%252004%25&service=citation&A=0.3826375948496452http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLERD%23sel2%2501%25year%252011%25page%2531%25sel1%252011%25vol%2501%25&service=citation&A=0.6130838604388459http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWHCADMIN%23year%252011%25page%252%25sel1%252011%25&service=citation&A=0.07653750021771422http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLERD%23sel2%2507%25year%252009%25page%25297%25sel1%252009%25vol%2507%25&service=citation&A=0.879244262674003http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWCACIV%23year%252009%25page%25788%25sel1%252009%25&service=citation&A=0.18243111800884804http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23LGR%23year%252009%25page%25843%25sel1%252009%25&service=citation&A=0.5529948263535132http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWCACIV%23year%252009%25page%25941%25sel1%252009%25&service=citation&A=0.34845423089746297http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%251%25year%252006%25page%25173%25sel1%252006%25vol%251%25&service=citation&A=0.35567316617521394http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%254%25year%252005%25page%25545%25sel1%252005%25vol%254%25&service=citation&A=0.8767508640937249http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252005%25page%2537%25sel1%252005%25&service=citation&A=0.1408915900801414http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWHCADMIN%23year%252008%25page%253158%25sel1%252008%25&service=citation&A=0.08170016512037725http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%251%25year%252007%25page%25100%25sel1%252007%25vol%251%25&service=citation&A=0.9780051104480957http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%252%25year%252006%25page%25487%25sel1%252006%25vol%252%25&service=citation&A=0.703352832623305http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252006%25page%2515%25sel1%252006%25&service=citation&A=0.8865030124318332http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23LGR%23year%252008%25page%25239%25sel1%252008%25&service=citation&A=0.8601009095048959http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWCACIV%23year%252008%25page%25141%25sel1%252008%25&service=citation&A=0.3342637545144235http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23LGR%23year%252012%25page%25530%25sel1%252012%25&service=citation&A=0.9685785808740079http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23EWCACIV%23year%252011%25page%251586%25sel1%252011%25&service=citation&A=0.27225383363322964http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%252%25year%252010%25page%25373%25sel1%252010%25vol%252%25&service=citation&A=0.8230159956073345http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%252%25year%252010%25page%25359%25sel1%252010%25vol%252%25&service=citation&A=0.5543358778099425http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKSC%23year%252009%25page%2514%25sel1%252009%25&service=citation&A=0.7054717226731037http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%252%25year%252000%25page%25326%25sel1%252000%25vol%252%25&service=citation&A=0.889041718534056http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%254%25year%251999%25page%25801%25sel1%251999%25vol%254%25&service=citation&A=0.07165169323229736http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2512%25year%252002%25page%25149%25sel1%252002%25vol%2512%25&service=citation&A=0.40550386675824945http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23year%252009%25page%25173%25sel1%252009%25&service=citation&A=0.33786162320420776http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23NI%23year%252008%25page%25310%25sel1%252008%25&service=citation&A=0.7626355037305264http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252008%25page%2538%25sel1%252008%25&service=citation&A=0.380885978182658http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23STC%23year%251997%25page%251466%25sel1%251997%25&service=citation&A=0.8728955970065413http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23NI%23year%252007%25page%2589%25sel1%252007%25&service=citation&A=0.08646769788061004http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%253%25year%252007%25page%251007%25sel1%252007%25vol%253%25&service=citation&A=0.49273480667633196http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252007%25page%2519%25sel1%252007%25&service=citation&A=0.16017916550693112http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2598%25year%252002%25page%2543290%25sel1%252002%25vol%2598%25&service=citation&A=0.5036302917494366http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%252%25year%252004%25page%25409%25sel1%252004%25vol%252%25&service=citation&A=0.197804346567373http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKHL%23year%252004%25page%2512%25sel1%252004%25&service=citation&A=0.8823944827615405http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23AC%23sel2%252%25year%252011%25page%25104%25sel1%252011%25vol%252%25&service=citation&A=0.9362443634741378http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ALLER%23sel2%251%25year%252011%25page%25285%25sel1%252011%25vol%251%25&service=citation&A=0.45847710483733317http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UKSC%23year%252010%25page%2545%25sel1%252010%25&service=citation&A=0.6401431008241678


6/36



Stummer v Austria (2011) 31 BHRC 573, ECt HR.

Thlimmenos v Greece (2000) 9 BHRC 12, ECt HR.

Welch v UK(1995) 20 EHRR 247, [1995] ECHR 17440/90, ECt HR.

Claims

S and KF applied for judicial review of two Prison Service Instructions (PSI

48/2011 and PSI 76/2011) issued by the Secretary of State for Justice togovernors of prisons regarding the exercise by them of discretion under s 1of

the Prisoners Earnings Act 1996 and r 31A of the Prison Rules, regarding the

imposition of deductions from earnings by prisoners working for private employers

on release schemes outside prison, to raise funds to be paid to Victim Support, a

body providing support for victims of crime. The facts are set out in the

judgment.

Kate Markus (instructed by Scott Moncrieff & Associates) for the first claimant.

Hugh Southey QC (instructed by Prisoners Advice Service) for the second claimant.

Jonathan Auburn (instructed by the Treasury Solicitor) for the defendant.

Judgment was reserved.

3 July 2012. The following judgment was delivered.

SALES J.

Introduction

[1]There are before the court two claims for judicial review of two Prison Service

Instructions issued by the Secretary of State for Justice (the Secretary of State) to

governors of prisons regarding the exercise by them of discretion regarding the

imposition of deductions from earnings by prisoners working for private employers on

release schemes outside prison, to raise funds to be paid to Victim Support, a body

providing support for victims of crime. The first instruction under challenge is PSI

48/2011 issued on 4 August 2011 and taking effect from 8 August 2011. The second

instruction under challenge is PSI 76/2011 issued on 20 December 2011 and coming into

force to replace PSI 48/2011 with effect from 1 January 2012.

[2] The first claim is brought by S, who is a male prisoner aged 40. He is in an open

prison serving an indeterminate prison sentence. He has had a full-time job with aprivate employer doing manual work outside the prison since June 2011. At the hearing,

he was represented by Ms Kate Markus, who submits that PSI 48/2011 was unlawful

and PSI 76/2011 is unlawful on the grounds that they violate art 1 (protection of

property) of the First Protocol to the European Convention for the Protection of Human

Rights and Fundamental Freedoms 1950, as incorporated into domestic law under the

Human Rights Act 1998(and set out in Sch 1).

[2013] 1 All ER 66 at 72

[3] The second claim is brought by KF, who is a female prisoner with an unspecified

number of children. She is in an open prison. She is serving a sentence of four years.

Her release date is 9 August 2012. She attends college on release from prison for two

days a week, so could only work part-time if she was able to find work outside prison.

She says she has decided not to seek work outside prison because of the possible

impact on her of the levy, travel costs and such like (it seems that she has not

approached the governor of her prison to see if any relief from the levy might be

granted in the particular circumstances of her case). At the hearing she was
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23num%251998_42a_Title%25&service=citation&A=0.8549908924676132http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%251%25sect%251%25num%251996_33a%25&service=citation&A=0.7540974598049648http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23ECHR%23sel2%2590%25year%251995%25page%2517440%25sel1%251995%25vol%2590%25&service=citation&A=0.978214639240695http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%259%25year%252000%25page%2512%25sel1%252000%25vol%259%25&service=citation&A=0.8586294706596925http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2531%25year%252011%25page%25573%25sel1%252011%25vol%2531%25&service=citation&A=0.28560035300236664


7/36



represented by Mr Hugh Southey QC, who submits that PSI 48/2011 was unlawful and

PSI 76/2011 is unlawful on the grounds that they violate art 1 of the First Protocol

(relying in that regard on the submissions made by Ms Markus on behalf of S) and also

on the grounds that they violate art 7 (no punishment without law) and art 14

(prohibition of discrimination) of the convention. He submits that they violate art 7

because they have the effec t of imposing a heavier penalty than the one applicable at

the time KF's criminal offence was committed. He submits that they violate art 14

because, although on their face they are applicable equally to men and women in prison,

they in practice have an excessive and disproportionate detrimental impact on women

and so involve unlawful indirect discrimination contrary to art 14. In support of thatsubmission he placed particular reliance on DH v Czech Republic(2007) 23 BHRC 526. He

also submits that the instructions were and are unlawful because they were issued by

the Secretary of State without his having due regard to the need to promote equality

for women, as he was obliged to do under s 149of the Equality Act 2010.

[4] S and KF were substituted late on in the proceedings for other claimants. The

Secretary of State agreed to this, because the intention was that there should be

suitable test cases for challenging the lawfulness of the two Prison Service Instructions.

The legal framework and the promulgation of the Prison Service Instructions

[5] The Prisoners Earnings Act 1996makes provision allowing for introduction of aregime governing deductions from prisoners' earnings. The Act did not come into force

upon enactment. It was only commenced in 2011.

[6] Section 1 provides:

'Power to make deductions and impose levies.(1) This section applies where(a) a prisoner is paidfor enhanced wages work done by him; and (b) his net weekly earnings in respect of the work exceedsuch amount as may be prescribed.

(2) Where the prisoner's net weekly earnings fall to be paid by the governor on behalf of theSecretary of State, the governor may make a deduction from those earnings of an amount notexceeding the prescribed percentage of the excess.

(3) Where those earnings fall to be paid otherwise than as mentioned in subsection (2) above, thegovernor may impose a levy on those earnings of an amount not exceeding that percentage of theexcess.

(4) In this section

enhanced wages work, in relation to a prisoner, means any work(a) which is not directed work,that is to say, work which he is directed to do in

[2013] 1 All ER 66 at 73

pursuance of prison rules; and (b) to which the rates of pay and productivity applicable are higherthan those that would be applicable if it were directed work;

net weekly earnings means weekly earnings after deduction of such of the following as areapplicable, namely(a) income tax; (b) national insurance contributions; (c) payments required to bemade by an order of a court; and (d) payments required to be made by virtue of a maintenancecalculation within the meaning of the Child Support Act 1991.'

[7] For the purposes of the 1996 Act, 'prescribed' means prescribed in the Prison Rules:see s 4(2). The challenges in the present proceedings involve prisoners who undertake

enhanced wages work for private employers. The relevant sub-section of s 1 is

therefore sub-s (3), which provides that the prison governor in each case may impose a

levy up to a level specified as prescribed in the Prison Rules.

[8] Section 2(1) of the 1996 Act provides:

'Application of amounts deducted or levied.(1) Amounts deducted or levied under section 1 aboveshall be applied, in such proportions as may be prescribed, for the following purposes, namely(a) themaking of payments (directly or indirectly) to such voluntary organisations concerned with victimsupport or crime prevention or both as may be prescribed; (b) the making of payments into theConsolidated Fund with a v iew to contributing towards the cost of the prisoner's upkeep; (c) themaking of payments to or in respect of such persons (if any) as may be determined by the governor
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23num%251991_48a_Title%25&service=citation&A=0.22687308573974452http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23num%251996_33a_Title%25&service=citation&A=0.1736406650836666http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%25149%25sect%25149%25num%252010_15a%25&service=citation&A=0.3317896031783324http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23BHRC%23sel2%2523%25year%252007%25page%25526%25sel1%252007%25vol%2523%25&service=citation&A=0.990698252975794


8/36



to be dependants of the prisoner in such proportions as may be so determined; and (d) the making ofpayments into an investment account of a prescribed description with a view to capital and interestbeing held for the benefit of the prisoner on such terms as may be prescribed.'

[9] Before the 1996 Act was brought into effect, careful consideration was given within

the Ministry of Justice to the question whether the Act should be activated and, if it

was, what levy regime should be introduced pursuant to it. This culminated in a paper

dated 27 July 2010 by Simon Greenwood of the Offender Safety, Rights and

Responsibilities Group of the National Offender Management Service which set out

proposals drawn up in light of information gathered from a number of prisons. The

priority for ministers was provision for victim support (see s 2(1)(a) of the 1996 Act).There would be significant administrative costs associated with implementation of a

regime under the 1996 Act, so it was important to keep it as simple as possible, leading

to the recommendation that it should be limited to providing victim support and that

funds raised should not be split amongst a number of different objectives. The paper

noted that care should be taken not to disincentivise prisoners from working, whilst also

seeking to generate sufficient revenue to make the exercise worthwhile in policy terms.

After proposing a threshold of about 20 a week, the paper stated: 'An appropriate

balance might suggest a figure of 40% for all eligible prisoners'.

[10] In December 2010 the government issued a Green Paper entitled Breaking the

Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders(Cm 7972)which addressed a wide range of proposals, of which activation of the 1996 Act was

one. An initial equality screening of the potential impacts of

[2013] 1 All ER 66 at 74

those policy proposals was published along with the Green Paper, and questionnaires

about this were sent to a range of persons and bodies with an interest in treatment of

prisoners. The discussion in the initial equality screening in relation to the 1996 Act was

limited, since it was one proposal among many and the proposal was at a high level of

abstractionthe specific proposals for the detailed regime in r 31A of the Prison Rules

1999, SI 1999/728and the Prison Service Instructions only came later. The document

included statistics about the breakdown of the prison population; pointed out that men

are disproportionately represented in custody compared to the national population and

that there is more capacity in the prison estate for men to work in prisons than women;

and so observed that there would be the potential for a disproportionate impact of the

implementation of the 1996 Act in relation to gender, which would be considered as the

policy was developed in more detail.

[11] Very little was said about the activation of the 1996 Act by persons responding to

the equality questionnaires in respect of the Green Paper. A single response said that

care should be taken to ensure that any regime under the 1996 Act 'doesn't negatively

impact on particular groups, ie women, and their children'. There were consultation

events in relation to the Green Paper in early 2011, but these did not focus to any

degree on the proposal to activate the 1996 Act.

[12] On 21 June 2011 the Secretary of State issued a full equality impact assessment

(EIA) in relation to the Green Paper. It stated that an EIA on the implementation of a

regime under the 1996 Act would be published separately.

[13] In the event, the Secretary of State decided that the 1996 Act should be brought

into effec t and a deductions regime established under it. In order to give effect to the

regime allowed for by the 1996 Act, a new ruler 31Ahad to be introduced into the

Prison Rules. Rule 31A provides:

'Prescription of certain matters in respect of prisoners' earnings.(1) The amount prescribed for thepurpose of section 1(1)(b) of [the 1996 Act] is 20.

(2) The percentage prescribed for the purpose of section 1(2) of the 1996 Act is 40%.

(3) All amounts deducted or levied under section 1 lf the 1996 Act shall be applied for the purposereferred to in section 2(1)(a) of the 1996 Act.
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_SI%23num%251999_728s_Title%25&service=citation&A=0.006558099224145519


9/36



(4) Victim Support is prescribed as a voluntary organisation to which payments may be made undersection 2(1)(a) of the 1996 Act.'

[14] The effect of this, when read with s 1 of the 1996 Act, is that where a prisoner

undertakes enhanced wages work for a private employer, the excess of their wages

above 20 a week may be subject to a deduction by the prison governor of up to 40 per

cent, which is deducted and paid to Vict im Support.

[15] Before r 31A was promulgated, an EIA was published by the Secretary of State in

July 2011. It included the following:'2. Introduction

2.1 The Government outlined its intention to implement the Prisoners' Earnings Act 1996 (the 1996Act) at paragraph 58 of December 2010's Green Paper Breaking the Cycle: Effective Punishment,Rehabilitation and Sentencing of Offenders (Cm.7972).

2.2 Implementing the 1996 Act is part of the Government's drive to make prisoners pay their debt tosociety and to victims of crime in

[2013] 1 All ER 66 at 75

particular. The 1996 Act allows for deductions to be taken from, or lev ies imposed on prisonersworking outside the prison for external employers, and for the money deducted or levied to beprovided to Victim Support, who provide services to victims of crime across England and Wales.

2.3 The 1996 Act applies to prisoners doing work they are not required to do in accordance with thePrison Rules and for which they earn an enhanced rate of pay. In practice the application of the Actwill be to those in open conditions working outside of the prison for external employers. This is a smallgroup of prisoners, currently up to 500 in number, with enhanced wages (that is, more than theywould earn for work which they are required to do and primarily in category D prisons). It wouldpotentially, though currently does not, also capture those working in closed prisons that volunteer fornon-core prison work and receive enhanced pay.

2.4 Clause 103 of the Legal Aid, Sentencing and Punishment of Offenders Bill will give the Secretary ofState a more flexible power, with the ability to include more prisoners in the scheme of deductions andlevies. A further EIA will be written in order to cover the changes that will come with theimplementation of clause 103.

2.5 Deductions or levies will be taken or imposed, after tax, National Insurance and other court-ordered payments, from earnings over 20 per week, subject to a 40% maximum rate and no upperlimit on the earnings from which deductions or levies are taken. The deductions or levies will beprovided to Victim Support.

3. Methodology and evidence sources

3.1 The Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing ofOffenders was published in December 2010. A Screening Equality Impact Assessment was publishedalongside the Green Paper. This provided an initial analysis of the potential equality impacts of theproposed implementation of the Prisoners' Earnings Act 1996 alongside other proposed reforms in theGreen Paper on the protected characteristics, the promotion of equality of opportunity and theelimination of unlawful discrimination.

3.2 This equality impact assessment does not repeat the analysis from the screening assessment.Instead, it provides a more detailed analysis of the category D population, compared to the rest of theprison population so that the direct impact of the proposed change can be estimated.

3.3 The data on the prison population includes details of prisoners' gender, age, ethnicity, nationality,physical disability and religion. Information is not held centrally on gender reassignment, sexualorientation, pregnancy and maternity or marriage and civil partnership.

3.4 During the consultation period, following publication of the Green Paper, a series of discussionswere held with a wide range of stakeholders including two that were specifically focused on equalityissues. A Women's Workshop was held to address women's policy issues raised by the Green Paper.Over 60 delegates attended and included representation from Criminal Justice System professionals,academics and volunteers. An Equalities Engagement event was also held to improve our

understanding of the likely equality impacts of all the Green Paper proposals and, where necessary,how they could be modified or mitigated. This event was attended by over 50 delegates representingall of the protected groups. In

[2013] 1 All ER 66 at 76

addition to the 1,200 responses received from the written consultation, an equality questionnaire


10/36


www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/results/tocBrowseNodeClick.do?tocCSI=274668&rand=0.23762272248368654&clickedNode=TAABAAB 10/36

seeking views on possible impacts of all the Green Paper proposals and any additional evidence thatmight be available was sent to 240 stakeholders. Seven responses were received and these, alongwith the 1,200 responses to the consultation, were reviewed.

4. Analysis

4.1 Respondents to Breaking the Cycle were almost universally in favour of the implementation ofthe 1996 Act. Where concerns were raised, they did not tend to focus on equalities issues.

4.2 Nevertheless, during the initial screening process for Breaking the Cycle it was acknowledgedthat there was a potential for disproportionate impacts as a result of the implementation of the 1996

Act when compared to the general population.

4.3 We now have March 2011 data for both the total prison population and category D prisonpopulation. This means we can conduct a more detailed analysis of any potential disproportionateimpacts on category D prisoners in comparison to the total prison population. Please see Annex A fordetails.

4.4 A limited number of prisoners also work out of category C prisons. This means we cannot rule outdisproportionate impacts on those who work out of category C prisons. However, the majority of theprisoners who work out of prison are from category D prisons and therefore data from category Dprisons is used as a proxy for [all those working out of prison].

4.6 Sex. Quantitatively, there are no expected differences in proportions of prisoners of a particularsex when comparing the total prison estate to category D prisons. However, qualitatively, concern was

raised during the consultation about women prisoners who were primary carers being adverselyaffected by the proposed reduction in their income. We do not however hold data that links the wagesand the sex of those prisoners working out of prison. Therefore, we cannot rule out a potential fordisproportionate impact in relation to sex.'

[16] Prison Service Instructions are issued by the Secretary of State pursuant to hispower of superintendence of prisons in s 4of the Prison Act 1952. Section 4(1) of that

Act provides: 'The Secretary of State shall have the general superintendence of prisons

and shall make the contracts and do the other acts necessary for the maintenance of

prisons and the maintenance of prisoners.'

[17] On 4 August 2011, the Secretary of State issued PSI 48/2011. PSI 48/2011

provided, so far as relevant, as follows:

'1. Background

1.1 The Government is implementing the Prisoners' Earnings Act 1996 (PEA). Under the terms of theAct, which will come into force on 26 September, it is envisaged that prisoners who are undertakingpaid work in the community and earning in excess of 20 a week, will be subject to the imposition of alevy amounting to 40% of their remaining earnings (the excess). The levy is applied to earnings over20 per week, so if a prisoner earns 25 per week net, the levy is made only from 5 per week, notthe full 25. The levy will be paid to Victim Support, a national charity which works in partnership withnumerous other such groups, with a view

[2013] 1 All ER 66 at 77

to the support of victims and communities. The PEA defines net weekly earnings as weekly earningsafter deduction of such of the following as are applicable, namely(a) income tax; (b) nationalinsurance contributions; (c) payments required to be made by an order of a court; and (d) paymentsrequired to be made by virtue of a maintenance assessment within the meaning of the Child SupportAct 1991.

1.2 This instruction is relevant only to prisoners who are undertaking paid work in the community asdescribed in this instruction [working outside the prison for outside employers].

1.10 Government policy is that levies should be made under the Act on earnings of prisoners workingoutside the prison for outside employers. However, as the Act stipulates that Governors may impose alevy, it would be open to Governors to decide not to do so in a particular case, for example wherethere are very exceptional circumstances. See also para. 2.1.12 below.

Mandatory actions

1.1 Governors must ensure (subject to para 1.10 above) that:

from 26th September, a levy is imposed in accordance with this Instruction;
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23num%251991_48a_Title%25&service=citation&A=0.3721827303930939http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23section%254%25sect%254%25num%251952_52a%25&service=citation&A=0.8492778292247027


11/36



Prisoner complaints and appeals

2.1.13 Any complaints from prisoners or appeals against being required to pay the levy will fall to bedealt with under the normal prisoner complaints process (see PSO 2510).'

[18] This PSI was accompanied by a statement of policy, issued by the Sec retary of

State, as to the approach which prison governors should follow in exercising theirdiscretion under s 1(3) of the 1996 Act (read in light of r 31A of the Prison Rules) in

making deductions from prisoners' earnings, as follows:

'Exceptional Circumstances

The Government has set out its commitment to ensuring that offenders make meaningful reparationsto victims and society. One of the ways in which this will be done is through the implementation of thePrisoners' Earnings Act 1996.

Government policy is that levies should be made on earnings of those prisoners working outside theprison for outside employers. However, because the Act stipulates that Governors may impose a levyit is open to Governors to decide not to do so in a particular case.

Any applications by prisoners to be exempted from the levy must be considered on their individualmerits, having regard to the circumstances of the individual prisoner.

In light of Government policy, we anticipate that exemptions from the levy will be infrequent and will

only be granted in very exceptional circumstances.

This note gives guidance as to the factors that we recommend Governors consider when consideringexempting a prisoner from the levy.

- Where applications for exemptions are based on a prisoner's claim that they or their family will suffersevere financial hardship as a result of the levy, we recommend that Governors consider how long theprisoner has been working out prior to the imposition of the levy, and therefore how their financialcommitments have changed.

[2013] 1 All ER 66 at 78

- We also recommend that consideration is given as to whether the prisoner's financial commitmentsresult from financial activity that is in fact prohibited under PSO 4465 Prisoners' Financial Affairs.

- We recommend that Governors give particular scrutiny to applications for exemptions resulting fromtravel costs, and in particular those applications that arise from unusual circumstances, for examplewhere a prisoner with a disability incurs a significantly greater travel cost than a non-disabled prisonerundertaking the same journey.

- If considering an exemption, Governors should aim to be reasonably satisfied as to the accuracy ofthe facts claimed. The onus of producing documentation to substantiate the application should be onthe prisoner. Until such time as the application for an exemption has been determined, it would bereasonable for the prisoner to be prevented from working out.

- Any decision to exempt the prisoner from the imposition of the levy must be recorded on theprisoner's personal file.'

[19] The thrust of the claimants' case under art 1 of the First Protocol is that therequirement in PSI 48/2011, repeated in PSI 76/2011, that prison governors should make

deductions at the full 40 per cent rate of the excess of enhanced earnings above 20 a

week, subject only to such a narrow class of exemption in 'exceptional' or 'very

exceptional' circumstances, is far too intrusive an interference with prisoners' rights

under art 1 of the First Protocol. In order to be lawful, the instructions should allow

prison governors a much greater discretion to respond to the individual circumstances

and needs of prisoners.

[20] Before issuing PSI 48/2011 the Secretary of State undertook a further EIA, which

included the following:

'Aims

What are the aims of the policy?

The Government outlined its intention to implement the Prisoners' Earnings Act 1996 in the GreenPaper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders.Implementing the 1996 Act is part of the Government's drive to make prisoners pay their debt to


12/36



society and to victims of crime in particular. The Act allows for deductions to be taken from, or leviesimposed on prisoners working outside the prison for external employers, and for the money deductedor levied to be provided to Victim Support.

The implementation of the Act and the over arching policy are the responsibility of Justice Policy Groupin the Ministry of Justice and is covered by their EIA. The aim of the NOMS PSI is to explain thepurpose of the Act and the process of taking the levy.

Stakeholders and feedback

Do you have any feedback from stakeholders, particularly from groups representative of the various

issues, that this policy is relevant to them?

The draft Prison Service Instruction that explains the Act and the relevant deduction/levying processeswas shared with relevant stakeholders. Prisoners (in the course of stakeholder group discussions andthrough correspondence from a specific prisoners' council) have also provided comments in responseto the Government's decision to implement the Act.

Impact

[2013] 1 All ER 66 at 79

Could the policy have a differential impact on staff, prisoners, visitors or other stakeholders on thebasis of any of the equalities issues?

The Government's intention is that the levy will apply to all prisoners who have been assessed assuitable to undertake paid work in the community and who meet the test set out in the Act in terms oftheir being liable to deductions or the imposition of a levy. The intention is that the same proportion ofthe excess earnings will be levied in all cases. Therefore all prisoners will be affected equally in cashterms.

It has been suggested that the impact of this will be greatest on prisoners who face the longest andmost expensive journeys to work. It has further been suggested that this may impact on BMEprisoners as they tend to live and work in the major conurbations that are a long way from the openprison sites. However, this is based on a misconception that prisoners in open prisons should beundertaking work placements near their discharge address. The purpose of working out is to gain workexperience to assist with future employment, and it is not necessary for this employment to be at thehome location if that is a long way from the prison.

We have considered whether disabled prisoners might find the levy more punitive if they face extratravel to work costs. However, many able bodied prisoners use their own cars to get to and from workand the arrangements for disabled prisoners are unlikely to be any more expensive. However,Governors have discretion to make concessions in exceptional cases.

Local discretion

Does the policy allow local discretion in the way in which it is implemented? If so, what safeguards arethere to prevent inconsistent outcomes and/or differential treatment of different groups of people?

The Act gives Governors a discretion that cannot be fettered. However, the Government's policy is thatthe levy will be made and that offenders will contribute to victim support. It has been conveyed toGovernors that it is expected that the levy will be taken in all but the most exceptional cases.

Summary of relevance to equalities issues

Gender (including gender identity) No '

[21] On 20 December 2011, the Secretary of State issued PSI 76/2011, to come into

effect and replace PSI 48/2011 on 1 January 2012. Before issuing PSI 76/2011 a further

EIA was prepared, which was in similar terms to that prepared for PSI 48/2011.

[22] PSI 76/2011 provides:

'1. Background

1.1 The Prisoners' Earnings Act 1996 (PEA) and related Rules came into force on 26 September. Under

the terms of the Act, prisoners who are undertaking paid work in the community and earning in excessof 20 a week may be made subject to the imposition of a levy amounting to up to (and including)40% of their remaining earnings (the excess). The levy is applied to earnings over 20 per week, soif a prisoner earns 25 per week net, the levy is made only from 5 per week, not the full 25. Thelevy is paid to Victim Support, a national charity which works in partnership with numerous other suchgroups, with a view to the support of victims and communities. The PEA defines net weekly earningsas weekly earnings after deduction of such of the following as are applicable, namely(a) income tax;


13/36



(b) national insurance contributions; (c) payments required to

[2013] 1 All ER 66 at 80

be made by an order of a court; and (d) payments required to be made by virtue of a maintenanceassessment within the meaning of the Child Support Act 1991.

1.2 This instruction is relevant only to prisoners working outside the prison for outside employers.

1.3 This instruction replaces PSI 48/2011. The changes from the previous instruction are as follows:-

A new Annex, Annex B, contains guidance to Governors on the exercise of their discretion under theAct to impose a levy at less than 40% (see paragraph 1.11)

A revised PEA 001 form is introduced enabling Governors to vary the level of deductions made bythe Shared Service Centre.

Desired outcomes

1.4 Governors will consider imposing a levy on the earnings of prisoners who are undertaking paidwork in the community as described in this Instruction.

1.11 It is the Government's policy that the discretion which Governors have to impose the levy should

generally be exercised in favour of imposing it. However Governors do still retain a discretion as towhether to impose a levy in each case, and at what level. Annex B provides guidance on theexceptional circumstances in which it may be inappropriate to impose a levy. See also para 2.1.13below.

Mandatory actions

1.12 Governors must ensure that:

They consider imposing a levy in accordance with this Instruction;

2. Operational instructions

Level of deductions

2.1.1 As set out in paragraph 1.1, the Act and related Rules set the maximum level of deductions asbeing 40% of the excess of net weekly earnings over 20. Net weekly earnings are calculated afterdeduction of income tax, national insurance, and court ordered and child support payments. However,Governors have discretion to set the levy at a lower rate, or not to impose it, in individual cases.

Reductions and exemptions to the Levy

2.1.14 Where a prisoner has applied for an exemption from, or reduction in, the levy, Annex Bprovides guidance on some of the types of exceptional circumstances governors might wish toconsider when deciding whether or not to exempt a prisoner from the levy, or to reduce the amount oflevy to be imposed

Prisoner complaints and appeals

2.1.18 Any complaints from prisoners or appeals against being required to pay the levy will fall to bedealt with under the normal prisoner complaints process (see PSO 2510).

[2013] 1 All ER 66 at 81

Annex B

Exceptional Circumstances

The Government has previously set out its commitment to implementing the Prisoners' Earnings Act1996.

Government policy is that levies should be made on earnings of those prisoners working outside the
http://www.lexisnexis.com.ezproxy3.lib.le.ac.uk/uk/legal/search/enhRunRemoteLink.do?ersKey=23_T16796985324&langcountry=GB&backKey=20_T16796985327&linkInfo=F%23GB%23UK_ACTS%23num%251991_48a_Title%25&service=citation&A=0.6725232496418878


14/36


15/36


16/36


17/36



Women do not wear uniform and have not for many years. It is generally recognised that part of therehabilitation for many women prisoners involves the ability to maintain and raise self-esteem. Self-esteem is linked for many women with personal appearance. Many women will want to have regularchanges of clothing, to have varied clothing, to use make up and dress their hair.

This means that women need greater amount of clothing than men and thus will need access to morepropertyincluding toiletriesparticularly lifers and women serving long sentences.

Many women prisoners however will enter prison with nothing and have little or no access to outsidemoney or clothing.

[2013] 1 All ER 66 at 85

DAY-TO-DAY LIVING: 9. Prison Shop

Women will generally need to purchase a wide range of toiletries, make-up and hair brushes etc. Theability to look after her personal appearance will be critical to many women's self-esteem. Womenfrom BME groups will have specific needs. (See Section L)

PATHWAYS TO RESETTLEMENT: 5) Finance, Benefit and Debt

Poverty is often a permanent feature of the lives of ex-offenders and the process of obtaining statebenefit can be a complicated one.

Managing to organise well enough to live within a budget and to meet deadlines is a priority thatwomen offenders often recognise is important, but which they can find difficult to achieve.

72% of prisoners surveyed were in receipt of benefits before coming into prison, 81% claimed benefitson release, 48% had history of debt. For a third of the prisoners their debt problem had worsened inprison.

Organisations such as Unlock can provide information and training on personal finance for offenders.

PATHWAYS TO RESETTLEMENT: 6) Children and Families

The 2003 resettlement survey showed that half of all women prisoners had dependent children(including stepchildren) under 18.

There is evidence to suggest a link between the maintenance of supportive family ties and reduction inre-offending.

It is accepted that women prisoners are more likely to try to run their families from inside prisonthan male prisoners.

Women prisoners receive far fewer visits than male prisoners. This is partly due to the distance manyare from home but many more men than women have supportive partners at home bringing up thechildren. Women from Black and Minority Ethnic backgrounds may disproportionately received even

less visits.

Some women living in abusive and exploitative relationships may need long-term support andassistance to bre

Documents

R (on the Application of S and Another) v Secretary of State for Justice