Are new sentencing rules creating two-tier justice?

Courts should know as much as possible about offenders before passing sentence, says distinguished lawyer Helena Kennedy. So why is a new move to protect ethnic minorities from injustice proving controversial? Sean O’Grady explains

A new set of guidelines for magistrates and judges has been published by the Sentencing Council for England and Wales. In today’s politically charged atmosphere, with allegations flying around on social media of “two-tier policing” and “two-tier justice,” any hint of weakness in the justice system gets seized upon, sometimes by malign actors.

A suggestion that courts might care to ask for pre-sentencing reports in certain circumstances, including on grounds of ethnicity, have been widely condemned both by the justice secretary, Shabana Mahmood, and her Conservative shadow, Robert Jenrick.

What is the Sentencing Council?

It is an independent body for England and Wales that tries to ensure the penalties dished out to offenders are lawful as well as fair and proportionate. The guidelines on sentencing are just that: guides, rather than hard rules.

Members of the council are appointed by the lord chief justice with the approval of the lord chancellor, who is normally the justice secretary. It is accountable to parliament for the way it spends its money, but it is not accountable to politicians for its “policy” – as is traditional in a country with a (still) independent judiciary. Otherwise, politicians could lock up people (individuals or groups) they don’t like. Indeed Mahmood is obliged by the Coroners and Justice Act 2009, which set up the council, to protect its independence – which, arguably, she is failing to do.

What’s the problem?

In attempting to protect courts from allegations of unlawful discrimination, breaches of human rights, and injustice, the guidelines suggest extra care and pre-sentencing reports for a range of “cohorts”, including those who are:

• At risk of first custodial sentence and/or at risk of a custodial sentence of two years or less (after taking into account any reduction for guilty plea)
• A young adult (typically 18-25 years)
• Female
• From an ethnic minority, cultural minority, and/or faith minority community
• Pregnant or postnatal
• Sole or primary carer for dependent relatives

Or if the court considers that one or more of the following may apply to the offender:

• Has disclosed they are transgender
• Has or may have any addiction issues
• Has or may have a serious chronic medical condition or physical disability, or mental ill health, learning disabilities (including developmental disorders and neurodiverse conditions) or brain injury/damage

Or the court considers that the offender is, or there is a risk that they may have been, a victim of domestic abuse, physical or sexual abuse, violent or threatening behaviour, any kind of abuse, modern slavery or trafficking, or coercion, grooming, intimidation or exploitation.

Critics say the ethnicity clause means that an offender who is white will be more harshly treated than one who is Black.

What’s the defence?

The idea behind the guidelines is to make sure that ethnic groups with protected characteristics – over-represented in prisons and traditionally suffering from discrimination – are not sent to jail as a result of conscious or unconscious racism. A pre-sentencing report is supposed to help prevent this. The distinguished lawyer Helena Kennedy argues that the more a court knows about an offender, the better. And these are only guidelines; a judge may ignore them.

What are the politics of it?

Sentences during the summer riots for incitement to racial hatred, arson, and violence via social media have been regarded by some on the far right as infringements of freedom of speech and “unfair” when set against wildly different offences, such as the case of Huw Edwards. Similarly, the way the police control pro-Palestinian protests versus other demonstrations by hard-right “patriots” has also been weaponised for political ends. Suella Braverman, with all the authority of her role as home secretary in 2022, helped popularise the two-tier claim and undermine trust in the police.

The suggestion that the government is somehow formally endorsing discrimination “against straight white men", as Jenrick styles it, is electoral poison. Hence also Mahmood’s swift condemnation of the guidelines: “As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind. There will never be a two-tier sentencing approach under my watch.”

What will happen?

Mahmood, pushing at the boundaries of the law and the principle of judicial independence, will write to the council to register “displeasure” and recommend reversing the change. If the council refuses, the crime bill presently going through parliament could be used to impose the government’s will.

It will be a small but significant further erosion of an independent court system. On the whole, Reform UK and the Conservative right, including Jenrick, will continue to spread myths and exploit false grievances for political gain.