The Sentencing Council for England and Wales has put equality before the law in serious doubt. Last week, it published new sentencing guidelines appearing to favour offenders from ethnic-minority backgrounds. The guidance requires judges to consider a pre-sentence report (PSR) before passing a sentence on an offender from an ‘ethnic-minority, cultural-minority, and / or faith-minority community’. This would make these offenders less likely to receive a custodial sentence.
The guidance has been roundly slammed as unfair and divisive. Even Labour’s justice secretary, Shabana Mahmood, has taken issue with it. She wrote to the Sentencing Council last week, urging it to rethink. Her Conservative counterpart, Robert Jenrick, has suggested he will judicially review the guidelines, meaning he will challenge them before the High Court in the hope that they are declared unlawful.
The Sentencing Council is now seeking legal advice on whether Mahmood has any power to influence its guidance. This presents a constitutional dilemma and a massive headache for UK prime minister Keir Starmer. The guidance certainly hasn’t helped him live down the Two-Tier Keir nickname that he picked up last summer, thanks to his handling of the riots.
My fellow lawyers think this is a storm in a teacup. Indeed, this was the tone of the response by chairman of the Sentencing Council Lord Justice William Davis. In his reply to Mahmood earlier this week, he reiterated that PSRs would not be mandatory for ethnic-minority offenders and that offenders not belonging to any of the specified ‘marginalised’ categories could also be given a PSR. What has raised most eyebrows is Davis’s fierce insistence that it is not for government ministers to determine criminal sentences.
These lawyerly critiques miss some key points. A PSR may not determine a sentence, but the ordering of one does impact the possibility of a custodial sentence in some cases. It gives offenders a chance to explain themselves and to try to contextualise their behaviour. That’s why the ordering of a PSR is usually a good sign for someone expecting prison. It means that a prison sentence is no longer a foregone conclusion.
By way of an example, consider two people convicted of the same crime. One of them is black and the other is white. Both of them are being considered for a custodial sentence. Both of them have come from troubled backgrounds. Perhaps both are very poor, with a terrible family life. These guidelines won’t determine the eventual sentence, but they will mean that the black offender is more likely to have a PSR ordered. He or she could therefore receive a lighter sentence, for reasons totally unrelated to the crime. This is a terrible violation of the principle of equality before the law.
One irony here is that while Davis’s letter sharply criticises Mahmood for seeking to ‘dictate’ sentencing guidelines and for politicising the work of the ‘independent judiciary’, really it is the unaccountable Sentencing Council that is intervening in politics. The new guidelines are an attempt to use the law to fix a political problem. Indeed, the Sentencing Council has clearly taken the view that the overrepresentation of non-white offenders in our prisons reflects racial prejudice in the justice system. This is the reasoning it uses to justify its demand for differential treatment. But this is a politicised interpretation of the statistics.
Yes, it is true that there is a disproportionate number of especially black men in British prisons, and that their sentencing tends to be harsher than their white counterparts. However, there are many reasons why these disparities exist that have nothing to do with prejudice. According to now foreign secretary David Lammy’s 2017 review into the treatment of ethnic-minority individuals in the justice system, a major factor is that non-white defendants are more likely to plead not guilty in court – often against the advice of their state-appointed lawyers. This can increase the length of their custodial sentences by up to half. Yet the Sentencing Council has, in effect, endorsed the view that systemic racism in the judicial system is really to blame.
Our unwritten constitution dictates that sentencing is best dealt with by an entirely independent judiciary. This allows for the law to be applied without fear or favour. That is a good thing. But these two-tiered guidelines are clearly more about playing politics than about delivering justice.
Disparities in the justice system matter and should be addressed. But treating offenders differently on the basis of their skin colour, ethnicity or background is not the answer. For the sake of equality before the law, these guidelines must be ditched.
Luke Gittos is a spiked columnist and author. His most recent book is Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, which is published by Zero Books. Order it here.
