New sentencing guidelines will make the UK’s justice system more fair, not less – expert view

In echoes of last summer’s riots, the government is again being accused of enabling a “two-tier” justice system in the UK. The current row is over new guidance published by the Sentencing Council, the independent public body that advises judges and magistrates on sentencing.

The guidance, effective from April 1, broadens the categories of cases in which pre-sentence reports should be sought. Compiled by the probation service, pre-sentence reports give courts information about an offender’s background, the circumstances of their offence, the risk they pose and their suitability for certain types of sentence.

The reports conclude with a sentencing proposal which takes these factors into account, alongside the seriousness of the offence. The judge or magistrate is not bound by the recommendation.

The guideline states that pre-sentence reports “will normally be considered necessary” in a number of circumstances. These include cases where the offender is a young adult, a sole or primary carer for dependent relatives, female, a victim of domestic abuse or trafficking, or suffers from addiction issues or a serious chronic medical condition.

However, it is the recommendation for pre-sentence reports before sentencing offenders from ethnic, cultural or faith minorities which has proved particularly controversial.

The previous guideline stated that pre-sentence reports should be sought in cases where the court was considering whether a community order or custody would be appropriate. What is new in the revised version is the list of groups for whom a pre-sentence report is considered particularly important.

However, this guideline does not mandate a pre-sentence report where it is deemed to be unnecessary. For example, where the court feels it already has a comprehensive picture of the offender’s circumstances.

What may seem at first glance to be a mundane procedural amendment has generated a strong backlash from government ministers and the opposition. Shadow justice minister Robert Jenrick claimed that there is a “blatant bias against Christians and straight white men”. Meanwhile, the justice secretary, Shabana Mahmood, has urged the Sentencing Council to review the guidance. Mahmood threatened to legislate in order to give the government powers to overrule the council.

In response, the chair of the Sentencing Council has written a public letter reasserting the body’s important role in maintaining the independence of the judiciary.

Why do we need pre-sentence reports?

It’s important to understand what the Sentencing Council is, and why it is recommending this new guidance.

The Sentencing Council is an independent public body which consists of 14 members. Most of these are judges, but it also includes the director of public prosecutions and a chief officer of police. Other members include those representing victims’ interests, rehabilitation services and an academic.

One of the council’s criteria for issuing new guidelines is that there is evidence of inconsistencies or inequalities in sentencing.

There is a substantial body of research pointing to disparities in sentencing outcomes between white offenders and those from ethnic minorities. The systematic sentencing of ethnic minority defendants to harsher sentences than white defendants was a focus of the 2017 Lammy review, an independent review on discrimination in the UK’s policing and criminal justice systems.

The review found evidence that disproportionate sentencing meant that the odds of receiving a prison sentence for drugs offences were around 240% higher for ethnic minority offenders. This is particularly concerning given the prisons overcrowding crisis, not least as ethnic minority offenders are overrepresented in the prison population.

Although there are variations across age groups and offence types, government statistics suggest that ethnic minority defendants are more likely than white defendants to receive an immediate custodial sentence, rather than a community sentence, for the same seriousness of offence. The statistics also suggest that ethnic minorities have a consistently higher average custodial sentence length for equivalent offences.

The Sentencing Council’s view is that the wider use of pre-sentence reports could help reduce these disparities by ensuring that judges and magistrates have as much information as possible at their disposal. This reasoning is supported by academic research that shows how sentencing differs across ethnic groups. For example, by emphasising aggravating factors and minimising mitigating factors when they apply to ethnic minority defendants, leading to more custodial sentences as well as longer sentences.

Importantly, the new guidance does not require judges to hand down lighter sentences to ethnic minorities. It simply recommends pre-sentence reports to be sought for more categories of offender so that the sentence can take into account any relevant factors.

The Sentencing Act 2020 stipulates that one of the purposes of sentencing is “the reform and rehabilitation of offenders”. This cannot be achieved if offenders’ personal circumstances are not considered.

Of course, the picture is not entirely clearcut. Some research suggests that the disparities may not be as stark as those suggested by the Lammy review. However, there is widespread consensus that there are some disparities, and addressing these is well within the remit of the Sentencing Council.

The government could follow recommendations to take other measures to tackle racial disparities in sentencing. For example, by improving outcomes for children and young people from ethnic minorities in the criminal justice system, as well as considering the indirect discrimination of social deprivation.

These are long-term projects and there are no quick fixes. But having pre-sentence reports in a greater number of cases is a first step to helping sentencers arrive at fair, transparent and effective sentences for all offenders.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Daniel Alge does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.