A fight is brewing in England over new sentencing guidelines that require judges to consider a criminal’s ethnicity and faith before deciding whether to sentence them to jail. The guidelines, critics say, could lead to harsh punishments for Christians and white men, while women and ethnic minorities receive more leniency.
The fight began when the independent Sentencing Council for England and Wales released new guidelines this week ostensibly designed to counteract potential biases during the sentencing period. Under the new guidelines, set to take effect on April 1, it “will normally be considered necessary” for judges to obtain pre-sentencing reports for offenders to help determine their sentencing when the individual is from an ethnic, cultural, or faith minority.
A 2018 study from the Center for Justice Innovation found that when a pre-sentence report was conducted, the offender was 10 times more likely to receive a community sentence rather than imprisonment.
The document will include an array of information on offenders, such as their personal history, age, family background, employment status, living conditions, past criminal convictions, and any mental health concerns. The reports recommend a sentence, and while they are not binding, they are typically followed by magistrate courts. However, Crown Court judges — who handle more severe crimes — tend to issue sentences different from the recommendation in the pre-sentence report.
The guidelines, which are not exhaustive, say a pre-sentencing report should be considered if the offender is a female, from an ethnic, cultural, or faith minority, is pregnant, identifies as transgender, has addiction issues, has mental health issues or a physical disability, or they are a victim of physical or sexual abuse.
Data from the Ministry of Justice report that the average custodial sentence – or prison sentence – for white defendants currently is 21.2 months, compared to 30.5 months for Asian defendants and 27.9 months for black defendants. The government attributes some of that disparity to “the varying offense[s]” of which they were convicted. The data show that someone from an ethnic minority is twice as likely as a white offender to receive a custodial sentence for a drug offense.
A 2022 report from the Ministry of Justice showed that white adults made up 84 percent of England’s population and 73 percent of its prison population. Meanwhile, Asian individuals made up 9 percent of the total population and 8 percent of the prison population. Black individuals made up 4 percent of the total population and 12 percent of the prison population.
While the guidelines are supposed to help address what the Ministry of Justice calls a “disparity” in outcomes in the criminal justice system between ethnic and white offenders, various ministers and officials in the British government have condemned the new guidelines and said they set up a “two-tier” approach to sentencings that will unfairly lead to white men and Christians being slapped with harsher punishments.
The Ministry of Justice said the justice secretary, Shabana Mahmood, was “incandescent” about the part of the guidance that directs courts to consider an offender’s ethnicity. Ms. Mahmood told reporters she will “register my displeasure” with the council, adding, “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.”
She also asked for a meeting with the head of the Sentencing Council, Lord Justice William Davis, as she said “no minister” asked for the guidance or was consulted in its drafting.
Prime Minister Starmer’s office told the BBC that he shares Ms. Mahmood’s view and that the “updated guidelines don’t represent the views of the government.”
The industry minister, Sarah Jones, told LBC radio, “We disagree with this decision. I think it’s really important in the country that people are trusting in the justice system that we have and that means you can’t have a two-tier system, it has to be fair, it has to be equal to everybody and so we have asked them to think again about this guidance.”
Conservatives, who have been expressing concern about what they see as a “two-tier” system for a while, are also criticizing the guidance. The conservative shadow justice secretary, Robert Jenrick, has not been shy with his criticism of the guidance.
Mr. Jenrick told BBC Radio’s 4 Today, “They say that if you’re a woman, if you’re trans, if you’re neurodiverse, if you’re an ethnic minority, if you’re someone from a minority faith group … then the judge is required to commission a pre-sentencing report, a report which in many cases leads to a lesser sentence.”
In an interview with Times Radio, he said the guidance will mean that “Christian and straight white men amongst other groups will be treated differently to the rest of society.”
A member of Parliament from the conservative Reform Party, Rupert Lowe, posted on X, “Young white men must be looking at the country and thinking — what have we done wrong? What did we do to deserve this? The answer, lads, is NOTHING.. You’re told that you’re racist for feeling patriotic, far right for going to the gym, bigoted for having a joke, chauvinistic for enjoying a beer and the football.”
“The establishment now openly wants to give white men tougher sentences. Just because we’re white? male? What message are we sending here, honestly? It’s genuinely disgusting,” he said.
The situation is threatening to put Mr. Starmer and his government in a tough position, as the Sentencing Council is independent and does not need to heed the ministers’ calls to change course.
Mr. Starmer could try to push Parliament to pass a law to overrule the council, which could upset liberal activists in England. Alternatively, they could let the guidance take effect. However, that could further cement the conservative moniker of “two-tier Keir” as his opponents accuse him of targeting them unfairly.