New “two-tier” sentencing guidelines only require there to be a “possibility” that the offender is from a minority group, according to documents which also reveal that magistrates compared the changes to a “get-out-of-jail-free card”.
The Sentencing Council drew criticism last week when it published guidance advising judges to consider the background of members of ethnic, cultural and religious minorities when deciding whether to impose a custodial or community sentence. Other factors that judges should consider included offenders who claim they were transgender or neurodiverse.
A new document, which contains the Sentencing Council’s response to a consultation on the guidelines, reveals that it went ahead with the changes despite being told by judges and magistrates that they would exacerbate court backlogs and add considerable expense for taxpayers.
It also shows that the council had considered adding more groups that could benefit from softer sentences, including sexual and domestic abuse offenders, the “recently bereaved” and the elderly.
The document states that no confirmation or proof is needed for an offender to be considered for special treatment. In a report justifying the changes, it said an offender could be considered for a softer sentence even if there was just a “possibility that someone is a member of one of the listed cohorts”.
Robert Jenrick, the shadow justice secretary, said such a move could lead to criminals falsely claiming they believed in a particular minority religion or were transgender or neurodiverse in order to receive a softer sentence.
He said: “The sentencing guidelines are ripe for abuse with the mere ‘possibility’ of an offender being of a ‘faith minority community’, transgender or neurodiverse enough to warrant softer treatment. This will undoubtedly be exploited by offenders who make false claims about their identity to escape a prison sentence.”
Shabana Mahmood, the justice secretary, met Lord Justice William Davis, the chairman of the Sentencing Council, for talks after reiterating her plea for the new sentencing rules to be ditched amid fears they would lead to two-tier justice.
Mahmood threatened to overrule the council by stripping it of the power to set sentencing guidelines if it refused to reverse the changes. The council, an independent body that issues guidance for judges to ensure consistency across the country, said it will consider Mahmood’s case for ditching the guidance once she has written a detailed letter setting out her arguments next week. Both sides described the meeting as “positive” and “constructive” and it leaves open the possibility of the guidelines being scrapped before they are due to take effect next month.
Lord Sewell of Sanderstead, who chaired the government’s commission on race and ethnic disparities, told Times Radio that Mahmood should abolish the Sentencing Council. He accused the justice secretary of being “totally confused”, saying: “She’s changed her mind, she’s up and down. One minute she’s for this, next minute we don’t know where she is on this. And she’s totally confused by it.”
The guidance relates to pre-sentence reports (PSRs), which are drawn up by probation officers when an offender is from a cohort that judges and courts may deem relevant when considering a sentence. The reports can play a pivotal role in helping the court or judge decide whether to impose a custodial or community sentence.
The guidance was published last week after a lengthy consultation. The council conceded that the changes were controversial and triggered “strong opinions from all sides”. It said some magistrates had warned that the additional list was “biased and conflicts with equality in sentencing”.
The report said: “Some respondents seemed to mistake the purpose of the list and thought that the cohorts listed would be exempt from the ‘full range of punishment’ and would get a ‘get-out-of-jail-free card’.” The council strongly denied this was the case.
The document shows that magistrates and judges warned of the additional burden the guidelines would place on the already overstretched probation service and courts. The requirement for pre-sentencing reports will add delays to cases and an estimated tens of millions of pounds to the cost of funding the criminal justice system.
The report stated: “Some respondents, including magistrates and judges, suggested a PSR being requested for every offender that falls into a cohort on the list is not realistic considering the probation service’s resource limitations and the backlogs currently facing courts.”
The justification for considering special treatment for ethnic minorities was to address disparities in sentences given to offenders from black, Asian and minority ethnic backgrounds.
However, the council conceded in a separate impact assessment on the new guidelines that there was no conclusive evidence that offenders from an ethnic minority background were more likely to receive harsher sentences. It also said there was no data available on what proportion of ethnic minority offenders received a pre-sentence report.
A letter from the Solicitors Regulation Authority to Mahmood said that the reason for the disparity in sentencing outcomes “remains unclear”.
Jenrick has published draft legislation designed to overrule the council’s guidelines and urged the government to adopt the plan. It would prevent guidelines being issued to judges without the consent of the justice secretary and would also give the minister the power to amend the guidance.
Jenrick said: “This two-tier sentencing guidance isn’t just deeply unfair, it is also likely to cost the taxpayer tens of millions of pounds. It will blow a hole in the probation service’s budget and overwhelm them, creating delays that will mean victims have to wait longer for justice.”
A Ministry of Justice spokesman said: “The lord chancellor and the chairman of the Sentencing Council had a constructive discussion. It was agreed that the lord chancellor will set out her position more fully in writing, which the Sentencing Council will then consider before the guideline is due to come into effect.”
[Matt Dathan, Home Affairs Editor – Thursday March 13, 2025, 5.00pm GMT, The Times]