What is behind today’s row over newly published guidelines from the Sentencing Council?
Are the new guidelines, as the Shadow Justice Secretary Robert Jenrick claims, a case of “blatant bias against Christians and straight white men”?
Or is the Council – independent of government and made up mainly of judges, magistrates and lawyers – simply trying to help courts pass the most appropriate sentences possible?
One thing is clear: there are “considerable disparities” in how ethnic minorities are treated in the criminal justice system. That was the conclusion of the Probation Inspectorate in a 2021 report. A telling statistic it highlighted at the time was that 27 per cent of prisoners were ‘non-white’ compared to 14 per cent in the general population of England and Wales.
A follow-up report in 2023 found that race equality for probation staff and those on probation remained “work in progress”.
The findings echo those of the Labour MP David Lammy (who is now the Foreign Secretary). In his 2017 review he suggested racial disparities were due to “bias”, including “overt discrimination”. The Probation Inspectorate, on the other hand, argued that probation staff did not pay enough attention to the “impact of discrimination and disadvantage” when compiling pre-sentence reports (PSRs).
It just goes to show that although there are disparities in the system, the causes are disputed.
So, to the current row. In July 2022 the Sentencing Council began revamping its guidelines for magistrates and judges on community orders and prison sentences, including when PSRs should be ordered. Why? To make the guidelines more comprehensive and give “greater emphasis to the crucial role of PSRs”.
After working for many months on the topic, the Council published draft guidelines in November 2023. It was a wide-ranging document, but the section on PSRs represented quite a departure from what had gone before. It listed groups for which a PSR “may be particularly important”, including those from ethnic minority communities and females.
The Sentencing Council cited Ministry of Justice research saying offenders who had a PSR were “more likely to successfully complete their court order”.
The Council consulted on its draft guidelines for three months. One hundred and fifty people and groups responded, including two from Parliament and four government bodies, the Ministry of Justice among them. Robert Jenrick, who at that point was a Home Office minister, before resigning his post, and Shabana Mahmood, then Labour’s freshly-appointed Shadow Justice Secretary, had a chance to respond to the consultation, or object to the draft guidelines but they did not take it.
Over the following months, the Sentencing Council revised its draft guidelines and yesterday issued its final version – which on the issues of PSRs is tougher than it was. The draft guideline said PSRs “may be particularly important” for various groups. The finalised guideline states a PSR will “normally be considered necessary”. The groups listed include: females, people from an ethnic, cultural or faith minority community, young adults and sole carers.
Although the Jenrick-Mahmood row around the new guidelines has focused on so-called ‘two-tier justice’, the fundamental weakness as I see it is the lack of evidence that PSRs help address disparities in the criminal justice system. The Sentencing Council admitted that “drawing conclusions” from ethnicity data is "almost impossible” and that there is “no clear evidence of differential impacts” of its previous guideline in this area.
The guidelines are due to come into effect on 1 April. Only the Sentencing Council can review, suspend or withdraw them. At the moment there is no sign of that.
The other option would be for Shabana Mahmood, the new Justice Secretary, to set her own rules around pre-sentence reports. And that might just happen. She has written to the Council making clear her “displeasure” at the new guidelines on PSRs and warning that she’ll legislate “if necessary”. She says that as someone from an ethnic minority background, “I do not stand for differential treatment before the law like this.”
The most likely scenario, however, is that this particular row will blow over. Disputes between politicians and the judiciary may play strongly with some parts of the press and the public - but they usually don’t end well.
