Justice Secretary Shabana Mahmood has been accused of having a ‘knee-jerk’ reaction to new sentencing guidelines – after she agreed with Tory Robert Jenrick’s ‘Trump-style’ reply
Justice Secretary Shabana Mahmood has been accused of having a “knee-jerk” reaction to new sentencing guidelines – after she agreed with Tory Robert Jenrick’s ‘Trump-style’ response.
The new guidance tells judges to consider a criminal’s ethnicity before deciding how long to jail them for. The Justice Secretary is said to be “incandescent” with the Sentencing Council over its guidance and unusually sided with Mr Jenrick on the issue.
She has threatened the council – which is independent from the government – with bringing in new laws to potentially take decisions away from it after the situation blew up on Thursday. But experts are disappointed in Ms Mahmood turning on the council, which undertook a months-long consultation across the justice sector to hammer out the guidance.
The row was sparked after the Sentencing Council released new guidance for judges about pre-sentence reports (PSR) on Wednesday. A PSR is simply a document providing more information about an offender to the courts and does not mean their sentence will be made more lenient.
The Sentencing Council said PSRs should be requested in all cases to get information about the offender’s personal circumstances, risk of dangerousness, the causes of the offender’s behaviour or other factors that might be helpful to the court.
The guidance gives a “non-exhaustive” list of examples of groups of people who might particularly benefit from a PSR, including those from an ethnic minority or a faith minority community, has disclosed they are transgender, has addiction issues, is pregnant, or is a victim of domestic abuse, modern slavery or coercion. A PSR would only be unnecessary “if the court considers that it has enough information about the offence and the offender”.
The Sentencing Council says PSRs are “pivotal” in helping the court decide whether to impose a custodial or community order and understanding whether they need to be put on, for example, drug treatment orders.
Shadow Justice Secretary Mr Jenrick said including ethnicity on the list was “social engineering” and “blatant bias” against straight white men. He branded it “two-tier justice” and said he would launch a judicial review if Ms Mahmood did not force the guidance to be changed.
Ms Mahmood has written to the Sentencing Council to “make clear my displeasure” and said the access to a PSR “should not be determined by an offender’s ethnicity, culture or religion”. “As someone who is from an ethnic minority background myself, I do not stand for differential treatment before the law like this,” she said. “For that reason, I am requesting that you reconsider the imposition of this guideline as soon as possible.”
She said she will be reviewing the role and powers of the council alongside the work of the independent sentencing review, which is due to be published in the spring, and will legislate in the Sentencing Bill later this year if necessary.
Former Tory Justice Secretary Robert Buckland told the Mirror: “There’s a danger here that things are looking a bit incoherent. There’s no contradiction in wanting dangerous offenders to be locked up and the public protected, and the court using intelligent options to make sure people who can be rehabilitated in the community are. I think this knee-jerk reaction has surprised me not only for the reasons I have already listed but for not respecting the independence of the Sentencing Council.”
He added: “When I was Secretary of State, I was very keen on increasing use of PSR because it seems to me to be a more thorough way for a court to have full information about an offender.” Mr Buckland admitted “unfortunate language” had been used by the Sentencing Council but added: “Irrespective of protected characteristics, each case will stand or fall at its own merits.”
Baroness Helena Kennedy, a barrister and Labour peer, accused Mr Jenrick of “introducing a sort of Trumpism into our system” and said she was “disappointed” by Ms Mahmood’s “step back”. She hit back at his accusations of a “two-tier justice” system and instead argued the list of characteristics would help to fix an already existing two-tier system which sees “disproportionate numbers of people from certain communities” ending up in prison.
She said: “Sometimes our system works in skewed ways and it’s good for judges to know more about the people who are coming in front of them and to know about their background. A well informed court is always going to do better in its outcomes.”
Deputy director of the Prison Reform Trust charity Mark Day described the calls as a “storm in a teacup”. “A pre-sentence report (PSR) is simply a way of getting detailed information about an individual’s personal circumstances and background so that the court is informed and able to pass the most effective sentence possible,” he said.
Official stats show Black people are highly overrepresented in the justice system, with Black prisoners making up 12.1% of the sentenced population as of March 2024. They make up 4% of the general population.
A Prison Reform Trust briefing published in February this year cited a 2016 study that found people from an ethnic minority group face “disproportionately higher odds” of receiving custodial sentences for indictable offences at the Crown Court. It also highlighted Ministry of Justice data from 2022 that showed defendants from an ethnic minority were more likely to be remanded in custody than white defendants, and black people spent the highest proportion of their sentence in prison compared to other ethnic groups.
David Lammy’s landmark review in 2017 found evidence of “differential treatment” in sentencing, including Black and minority ethnics being more likely than white defendants to receive prison sentences for drug offences. Racial disproportionality in the justice system is not part of the government’s landmark sentencing review.
Keir Starmer endorsed Ms Mahmood’s call for a reversal of the guidance for judges. A Downing Street spokesman said: “The first step as the Justice Secretary set out is for her to write to the Sentencing Council. We await their response. I’m not going to get ahead of that process.”
The Sentencing Council said it is currently considering its reply to Ms Mahmood’s letter when contacted for comment. On Wednesday, chair of the Sentencing Council Lord Justice Davis said: “The reasons for including groups vary but include evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment. Pre-sentence reports provide the court with information about the offender; they are not an indication of sentence.”