Concerns have emerged regarding the updated sentencing guidelines for judges, raising fears that they may inadvertently discriminate against “straight white men.” Critics argue that the new provisions could make it more likely for ethnic minority individuals and transgender offenders to receive leniency in sentencing, potentially allowing them to avoid prison.
The Sentencing Council, which operates independently to ensure consistency in judicial decisions, recently advised judges to consider the preparation of a pre-sentence report for specific categories of offenders. Such reports are deemed essential for individuals from ethnic, cultural, or faith minorities, as well as other groups, including young adults aged 18 to 25, women, and pregnant individuals. These reports provide insights into the context of the crime and the offender’s background. However, this guidance has faced backlash from both the Labour and Conservative parties.
Here, The i Paper delves into the reactions surrounding the new guidelines and assesses the validity of various claims.
Reactions from Labour and the Conservatives
In response to the new guidelines, Conservative shadow minister Robert Jenrick expressed that the findings indicated “clear evidence of blatant discrimination against straight white men” within the justice system. He remarked, “Under Two-Tier Keir, our justice system is set to exhibit an anti-white and anti-Christian bias.”
Jenrick further elaborated during an interview with Times Radio, stating, “The report suggests that individuals classified as women, transgender, neuro-diverse, or from ethnic or minority faith backgrounds may be less likely to receive custodial sentences due to the involvement of pre-sentencing reports commissioned by judges. This implies that Christian and straight white men, along with other groups, will face different treatment compared to the general population.”
Justice Secretary Shabana Mahmood also voiced her concerns in the Commons, asserting, “As a member of an ethnic minority, I do not endorse any form of differential treatment in the eyes of the law.” She emphasized, “There will never be a two-tier sentencing system under my watch or this Labour Government.” Although she acknowledged the Sentencing Council’s independence, she stated her intention to write to them to express her dissatisfaction and recommend reversing the guidance changes. “These guidelines do not reflect my views or those of this Government,” she added. Notably, the previous administration, during which Jenrick served as a minister, was consulted about the changes during the consultation period spanning from November 2023 to February 2024.
The Sentencing Council’s Perspective
The Sentencing Council clarified that pre-sentence reports are crucial in assisting the courts in determining whether to impose custodial or community sentences. They also provide guidance on suitable requirements for offenders, whether on community orders or suspended custodial sentences. This includes considerations for individuals from “ethnic minority, cultural minority, and/or faith minority communities,” as well as those who identify as transgender.
Previously, the factors considered for leniency primarily focused on whether an offender had served a custodial sentence before, their age (specifically those aged 18 to 25), gender, pregnancy status, addiction issues, chronic medical conditions, disabilities, mental health challenges, or experiences as victims of domestic abuse.
Is there a risk of discrimination against white men?
It is important to note that sentences for all defendants, regardless of their backgrounds or ethnicities, are determined by an independent judiciary in a court of law, rather than the Sentencing Council itself. The newly issued guidelines serve as additional resources for the court and do not dictate the final sentence. The Sentencing Council emphasizes that these changes aim to address existing inequalities within the justice system, as certain demographic groups are disproportionately more likely to face custodial sentences than others.
According to the report, “For some offences, evidence indicates a disparity in sentencing outcomes for offenders from specific ethnic minority backgrounds.” Lord Justice William Davis, chairman of the council, noted that tailoring sentences to fit the individual circumstances of offenders holds the greatest potential for effectiveness. He remarked that the updated guidelines would ensure that the principles governing community and custodial sentences are applied consistently and transparently, making them more suitable and appropriate for the offenders and their respective offences.
Will ethnic minorities or transgender individuals face reduced prison sentences?
The Sentencing Council has advised courts to specifically “avoid” custodial sentences only for a single demographic—pregnant women or mothers of newborns. The guidance states, “In cases involving mandatory minimum custodial sentences, pregnancy and the postnatal period may constitute ‘exceptional circumstances’ that could warrant not imposing the statutory minimum sentence.”
Janey Starling, co-director of the feminist campaign group Level Up, praised the changes as a “significant milestone” in the pursuit of ending the incarceration of pregnant women and mothers. Attorney Liz Forrester, representing the organization No Births Behind Bars, highlighted that the guidelines finally acknowledge the “harmful impact” of incarceration on infants and pregnant women. It should be noted that courts have not been instructed to exercise leniency in sentencing for any ethnic or LGBTQ+ groups.
Insights from Legal Experts
Helena Kennedy, the president of Justice—a law reform think tank—and director of the International Bar Association’s Institute of Human Rights, stated on the Today programme that a “well-informed court,” equipped with a pre-sentence report, would yield better outcomes for society. She added, “The real issue is that the current system disproportionately inflicts unfair treatment on certain segments of our society, including women and young individuals from ethnic minorities. Therefore, having a court that is more informed about these backgrounds is beneficial.”
Kennedy argued that the guidance modifications would lead to “more favorable outcomes in our courts,” and criticized Jenrick and Mahmood for attempting to introduce “Trumpism” into the judicial system. She asserted, “This is not about ‘wokeness’; rather, it’s about basing our system on real evidence of where it fails, and having more information ultimately leads to better outcomes.”
