"Today was very nearly what the Tories were calling 'two-tier Tuesday,'" said Politico.
The Sentencing Council's updated guidelines for judges and magistrates in England and Wales, due to come into force today, advised courts to "normally consider" pre-sentence reports before sentencing people from 10 categories – including women and those from ethnic or religious minorities.
But after widespread criticism from both Labour and the Conservatives – with accusations of "two-tier justice" – the justice secretary demanded that the independent body U-turn on its guidance, and introduced emergency legislation to overrule it. Despite initially standing firm, the Sentencing Council "caved to government pressure" last night, said Politico, and suspended the guidance while Shabana Mahmood's bill is considered.
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What are pre-sentence reports?
They provide courts with information about an offender's background and the circumstances surrounding the crime. Compiled by the Probation Service, the reports include a sentencing recommendation that "takes these factors into account, alongside the seriousness of the offence", said Daniel Alge, a senior lecturer in criminal justice, on The Conversation. But crucially, the judge or magistrate is "not bound by the recommendation".
Previously, pre-sentence reports were advised if the court was deciding between a community order or custody. The new guidance, published by the independent body this month after a consultation last year, included a revised list of the types of offender for whom a pre-sentence report might be particularly important.
Reports "will normally be considered necessary" for offenders in one of 10 cohorts, it said: women; a young adult; a sole or primary carer for a relative; a victim of domestic abuse; a victim of trafficking; an addict; someone suffering a serious chronic medical condition; and someone from an ethnic minority, cultural minority or faith minority.
What was the council's thinking?
"You are more likely to receive a custodial sentence if you are from an ethnic minority group, even after controlling for various offender and case characteristics," said Stephen Bush in the Financial Times.
There is "no statistically significant difference" as to whether someone is found guilty by a jury; there is, however, a "statistically significant difference at sentencing", being greatest for people in the "other" ethnic group. It is this disparity the council was seeking to address.
So what's the backlash?
Shadow justice minister Robert Jenrick said the guidance showed a "blatant bias against Christians and straight white men". He claimed it would "make a custodial sentence less likely" for those from an ethnic or religious minority, said Sky News.
That was a "gross oversimplification", said Joshua Rozenberg in the Law Gazette. But Mahmood "allowed herself to be wound up". On 20 March, the justice secretary "fired off a letter" to William Davis, lord chief justice and chair of the Sentencing Council. There is "a difference in sentencing outcomes for ethnic minorities", she wrote: "the disparity is clearly real."
While pre-sentencing reports "can be valuable in all cases", the government opposes "differential treatment on the basis of race or ethnicity".
She added: "A Muslim woman, like me, is safer in this country when she is treated no differently to her fellow citizens, regardless of the colour of her skin or the nature of her faith."
Ministers also argue that any action to tackle bias should originate from elected politicians and not a quango. "I'm very disappointed in the response of the Sentencing Council on this issue," Keir Starmer told GB News yesterday.
Then what happened?
The council "replied robustly", said Rozenberg. "I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders," Davis wrote in a public letter. "Plainly that suggestion is completely wrong."
But judges must "do all that they can to avoid a difference in outcome based on ethnicity". They would be "better equipped to do that if they have as much information as possible about the offender".
The council refused to back down, so today Mahmood has introduced emergency legislation that would make the guidelines "unlawful". They "create a justice system where outcomes could be influenced by race, culture or religion", she said. "This differential treatment is unacceptable – equality before the law is the backbone of public confidence in our justice system."
But Mahmood was told it would be impossible to pass the bill through Parliament before the Easter recess, said The Guardian, so there would have been a "short, confusing period" during which the guidance would have applied. To avoid this "potentially chaotic process", the council confirmed it would not implement a guideline while there was a draft being considered that would make it illegal.
In a statement, it said it still believed the guidelines were "necessary and appropriate".
