Fact check: New sentencing guidelines were written by independent body
The guidelines say courts should always order a pre-sentence report when considering a prison term ‘unless it considers that it is unnecessary’.
The Conservative Party claimed that the Prime Minister supports a change to the guidelines about when courts should ask for a so-called pre-sentencing report.
Writing on social media, the party said: “Keir Starmer wants to treat ethnic minority criminals more leniently in sentencing, creating a two-tier justice system. It’s anti-British.”
Labour’s Justice Secretary has said the new proposed guidelines were consulted on during the previous government.
Evaluation
The change in the guidelines has been set by the Sentencing Council and there is no evidence that Sir Keir Starmer supports it.
In fact, Justice Secretary Shabana Mahmood has requested that the council reconsiders the guidelines and said she might legislate to change the council’s role. Sir Keir’s spokesperson has said he backs Ms Mahmood on the matter.
It is accurate to say that changes to the guidelines were consulted on while the Conservative government was in change. However the wording that was consulted on is different to the final guidelines.
The facts
The claim includes a screenshot from the Sentencing Council’s new guidelines, which are set to come into force from April 1.
What do the new guidelines say?
The relevant section of the guidance deals with pre-sentence reports, which are written by probation officers.
Probation officers will interview people convicted of a crime to understand their background, the circumstances that led them to offend and whether they are remorseful for their actions, among other things.
The report they present to the court will include this information as well as a suggestion on what kind of sentence would be suitable. The court is not bound by these recommendations.
The new guidelines say that every time a court is considering whether it should impose a community order or prison sentence, it must get a pre-sentence report “unless it considers that it is unnecessary”.
They add: “A pre-sentence report may be unnecessary if the court considers that it has enough information about the offence and the offender.”
What has caused controversy?
The section above is not what the Conservative Party highlighted. Its screenshot was from the next section of the guidelines, which said: “A pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts.”
One of those cohorts was if the person is “from an ethnic minority, cultural minority, and/or faith minority community”.
Why did the Sentencing Council include this in the guidelines?
In the Sentencing Council’s consultation on the guidelines, it explained it had considered detailing the situations which mean that a pre-sentence report might be unnecessary. However it decided not to do so as it could “risk limiting the ability for courts to request (pre-sentence reports) in cases in which it may be beneficial”.
It therefore proposed it was better to set out when a pre-sentence report is necessary.
This was deemed to be when a person fit into one or more cohorts. Alongside ethnic, cultural and faith minorities, these cohorts also included females, young adults and people facing their first custodial sentence.
For people from these cohorts a pre-sentence report “may be particularly important”, the consultation said.
It explained this by quoting from a book used by judges which says that the report can “be particularly important for shedding light on individuals from cultural backgrounds unfamiliar to the judge”.
Around 11% of court and tribunal judges are from ethnic minority backgrounds. That is a lower proportion than the overall working age population. However it is comparable to the proportions among 50 to 74-year-olds, something that the Government says might be a better comparison due to the age profile of most judges.
In November 2023, the Sentencing Council said that although data was limited, there was some indication that offenders from ethnic minority backgrounds were “slightly less likely than white offenders to have a (pre-sentence report) prepared” before receiving a community or custodial sentence.
In a statement following pushback against its new guidelines, the Sentencing Council 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.”
It added that pre-sentence reports “are not an indication of sentence”.
Does the Prime Minister support the change?
The Sentencing Council is an independent body, but has to consult with Parliament and appear before the House of Commons Justice Select Committee when requested.
The Lord Chancellor has the right to propose to the council that the guidelines be changed.
That position is currently held by Shabana Mahmood, who is also Justice Secretary.
On March 6 Ms Mahmood wrote a letter asking the Sentencing Council to reconsider its new guidelines.
In it she said: “I must make clear my displeasure at the direction that this guideline took in recommending differing approaches for those from ethnic minorities, cultural minorities and/or from a faith minority background.”
She said that pre-sentence reports can assist the courts “but the access to one should not be determined by an offender’s ethnicity, culture or religion”.
She added: “I am requesting that you reconsider the imposition of this guideline as soon as possible.”
Ms Mahmood also said: “I will be reviewing the role and powers of the Sentencing Council alongside the work of the Independent Sentencing Review. If necessary, I will legislate in the Sentencing Bill that will follow that review.”
Before she sent this letter, the Prime Minister’s spokesperson said Sir Keir “backs (the Justice Secretary’s) comments”.
Did the consultation for the new guidelines take place under the previous government?
In her letter, Ms Mahmood said: “The consultation was undertaken under the last government, between November 2023 and February 2024.”
The dates that Ms Mahmood gave are accurate – the consultation was published on November 29 2023 and ran until February 21 2024.
However the wording in the consultation is slightly different. The draft that was consulted on said a pre-sentence report “may be particularly important” if the offender was from one of the cohorts named.
The final guidelines instead said a pre-sentence report “will normally be considered necessary” if the offender belonged to one of those cohorts.
