Sentencing Council warns against guidance being ‘dictated’ by ministers

The Sentencing Council has warned against guidance to judges being “dictated” by ministers after the Justice Secretary threatened to change the law following claims of “two-tier” justice.

New guidance for judges to consider a criminal’s ethnicity before deciding their punishment prompted Shabana Mahmood to write to the independent body to make clear her “displeasure” and call for the changes to be reconsidered.

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

The updated guidance, which comes into force from April, says 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.”

In a letter to Lord Justice William Davis, chairman of the Sentencing Council for England and Wales, Ms Mahmood said she was considering whether policy decisions such as this should be made by the Sentencing Council and what role MPs should play.

But Lord Justice Davis replied that the Sentencing Council preserves the “critical” position of the independent judiciary in relation to sentencing.

He said: “I respectfully question whether the inclusion of a list of cohorts in the imposition guideline was a policy decision of any significance.

“However, whatever the import of the decision, it related to an issue of sentencing.”

He further warned: “In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender.

“If sentencing guidelines of whatever kind were to be dictated in any way by ministers of the Crown, this principle would be breached.”

The council’s chief said he was taking legal advice on whether the Justice Secretary’s power under the Coroners and Justice Act 2009 to ask for guidelines to be revised could be applied in this circumstance, and if it could, it will be considered at the body’s next meeting.

“This is not a power which ever has been used to ask the council to revise a guideline immediately after it has been published and which has been the subject of detailed consultation with the Lord Chancellor,” Lord Justice Davis said.

Ms Mahmood had said “no minister” in this Government approved of the guidance or was involved in the consultation.

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

Lord Justice Davis said in response that there were 150 responses to the consultation on the new guidance, including from the then-minister for sentencing, with “no concern expressed about the term now under debate”.

Of the new guidance, the chairman added there is “good evidence” of a disparity in sentence outcomes between white offenders and those of an ethnic minority for some offences.

“Why this disparity exists remains unclear,” he said.

“The council’s view is that providing a sentencer with as much information as possible about the offender is one means by which such disparity might be addressed.

“I do not accept the premise of your objection to the relevant part of the list of cohorts for whom a pre-sentence report will normally be considered necessary.

“I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders. Plainly that suggestion is completely wrong.”