Justice Secretary threatens to change law in call to reconsider court guidance

The Justice Secretary has threatened to overrule the Sentencing Council by changing the law as she called for new guidance for judges to consider a criminal’s ethnicity before deciding their punishment to be reconsidered “as soon as possible”.

In a letter to the independent body, the Lord Chancellor said she “must make clear my displeasure” at the changes, adding: “I do not stand for differential treatment before the law like this.”

The Sentencing Council on Wednesday published new guidelines for courts to follow when imposing community and custodial sentences, including whether to suspend jail time.

The changes, which come into force from April, detail that a pre-sentence report would usually be necessary before handing out punishment for someone of an ethnic, cultural or faith minority, alongside other groups such as young adults aged 18 to 25, women and pregnant women.

But Ms Mahmood wrote: “A pre-sentence report can be instrumental in assisting courts in the determination of their sentence.

“But the access to one should not be determined by an offender’s ethnicity, culture or religion.”

She requested an urgent meeting in her letter to the chairman of the Sentencing Council for England and Wales, Lord Justice William Davis, adding that “no minister” in this Government approved of the guidance or was involved in the consultation.

Ms Mahmood also said she was considering whether policy decisions such as this should be made by the Sentencing Council and what role MPs should play.

“For that reason, I will be reviewing the role and powers of the Sentencing Council alongside the work of the Independent Sentencing Review,” she said.

“If necessary, I will legislate in the Sentencing Bill that will follow that review.”

It comes as shadow justice secretary Robert Jenrick said he will legally challenge the guidance on the grounds it enshrines “anti-white” and “anti-Christian” bias in the criminal justice system.

Conservative leader Kemi Badenoch had earlier called for Ms Mahmood to change the law and said the Conservatives “will back her”.

“Ministers should decide, not quangos. Labour need to grip this,” she said.

The previous government was also consulted on the change during the consultation period between November 2023 to February 2024.

Defending the guidance on Wednesday, 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.”

The guidelines also state pre-sentence reports can still be necessary if an offender does not fall into one of the groups.

Meanwhile, 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.

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.