Is prosecutorial discretion subject to the public sector equality duty?

Question

The Equality Act 2010 creates a duty on public sector entities to have consideration for equality in all decisions they take. Does this bear on prosecutorial offices and their exercises of prosecutorial discretion?

Answer 1

Yes, decisions must not be contrary to section 149 Equality Act 2010, which defines "Public sector equality duty" to mean:

(1)A public authority must, in the exercise of its functions, have due regard to the need to—

• (a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

• (b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

• (c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

...

(7)The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation.

(8)A reference to conduct that is prohibited by or under this Act includes a reference to—

• (a)a breach of an equality clause or rule;

• (b)a breach of a non-discrimination rule.

(9)Schedule 18 (exceptions) has effect.

And as long at the Crown prosecutor exercises discretion by deciding to / not to, for example charge a suspect based on a subjective reading of the evidence etc, and not one of the above protected characteristics, then the prosecutor has complied with the equality duty.