Rather than ending two-tier justice, Labour risks enshrining it in law

Anyone who values equality before the law should be deeply concerned, writes Mark Day. This decision could undermine wider efforts to address inequalities in the system, including for other protected characteristics

Equality before the law is an important principle that UK citizens rightly hold dear. The colour of someone’s skin should have no bearing on the sentence they receive – nobody wants to see two-tier justice.

A report of the findings of a citizens' panel on effective sentencing published this week by the Prison Reform Trust suggests that the public agrees. Panellists criticised “systemic unfairness” in the justice system, which “disproportionately affects minoritised ethnic groups, women, and working-class individuals”.

While it may be comforting to believe that justice is blind, the reality is very far from the ideal. A 2016 study found that people from ethnic minority backgrounds face disproportionately higher odds of receiving a prison sentence for indictable offences at the Crown Court. Black people were 53 per cent, Asian people 55 per cent, and other ethnic minority groups 81 per cent more likely to be imprisoned than white people, even accounting for higher not guilty plea rates. Twenty-seven per cent of people in prison are from a minority ethnic group, compared to 18 per cent of the total population.

The question of how to tackle disproportionate outcomes in the justice system has exercised policymakers from across the political spectrum. In 2016, the Conservative prime minister, David Cameron, commissioned the Labour MP David Lammy – now Foreign Secretary – to conduct an independent review of the experience of people from minority ethnic groups in the criminal justice system.

The report of the review, published in 2017, provided a forensic analysis of disproportionate outcomes at key stages in the justice system from prosecution through to sentencing, prison and release. At the time, its recommendations for reform were widely accepted by both the governing and opposition parties.

Now, the furore that has erupted over the Sentencing Council’s imposition guideline on the use of pre-sentence reports threatens to turn that political consensus on its head. The justice secretary’s extraordinary capitulation to a populist campaign of misinformation on the guideline risks undermining efforts to ensure that equality before the law is a reality for all defendants, regardless of their ethnic background.

Shabana Mahmood has agreed with the view of her opposition counterpart Robert Jenrick that the council’s inclusion in the guideline of specific cohorts for whom it would be normally considered necessary to commission a pre-sentence report amounts to “two-tier justice”.

Mahmood is now rushing emergency legislation through Parliament to forbid the sentencing council from issuing guidance on the use of pre-sentence reports regarding an offender's cultural or ethnic background. The legislation is so widely drawn that it may also prevent the council from issuing guidelines about other protected characteristics, including pregnant women and those with disabilities.

The purpose and content of the guidelines have been widely (and wilfully) misunderstood. A pre-sentence report is not the sentence itself. It is commissioned by the judge or magistrate to provide the court with more information about the background of the defendant. Pre-sentence reports are not commissioned to reduce a sentence but to inform effective decision-making. The sentence passed remains at the discretion of the court.

Justice Secretary Shabana Mahmood said there will be no ‘two-tier’ system (Jordan Pettitt/PA) (PA Wire)

The list of cohorts in the guidelines includes people from minority ethnic and faith backgrounds but also other groups such as pregnant women and primary carers for whom the court needs to have detailed information to inform the sentencing decision. The guideline makes clear that the list of cohorts is non-exhaustive. The inclusion of race as one of the cohorts in the guideline reflects the importance the Lammy review placed on pre-sentence reports for addressing disproportionate outcomes at the sentencing stage:

“These reports ‘assist[s] the court in determining the most suitable method of dealing with an offender’ – and may be particularly important for shedding light on individuals from backgrounds unfamiliar to the judge. This is vital considering the gap between the difference in backgrounds – both in social class and ethnicity – between the magistrates, judges and many of those offenders who come before them.”

The draft guidelines were subject to detailed consultation and have been widely welcomed by the sector. Both the previous government and the opposition had the opportunity to submit evidence and did not object to the draft guidance on pre-sentence reports.

The justice secretary has said that addressing disproportionate outcomes in the justice system is a question of government policy. In her view, the Sentencing Council has overreached itself in attempting to address concerns which should be a matter for elected politicians, not judges. But this flies in the face of the findings and recommendations of the Lammy review. It makes clear that disproportionality can only be tackled by bodies at each stage of the system taking accountability and responsibility for their outcomes. By restricting what it can say in its own guidance, the justice secretary has effectively tied the hands of the judiciary in fixing its problems.

But perhaps the most concerning aspect of the government’s capitulation to the idea of a two-tier justice system is that it is simply untrue. The notion that “straight white men” are disadvantaged in our justice system – as the shadow justice secretary has suggested and with which the justice secretary implicitly agrees – is a figment of the populist imagination. Sexual orientation isn’t included as one of the cohorts in the guideline. As the Lammy review highlighted, the real two-tier justice system in this country is the one in which people from minority ethnic communities face unique disadvantages at each stage of the process and are treated more harshly than their white counterparts.

Rather than ending two-tier justice, therefore, the justice secretary’s reckless rush to legislate risks enshrining it in statute. The decision will undoubtedly have a chilling effect and could undermine wider efforts to address inequalities in the system, including for other protected characteristics. Anyone who values equality before the law should be deeply concerned.

Mark Day is Deputy Director of the Prison Reform Trust