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The Sentencing Council has rejected a call from the UK government to abandon guidelines criticised as leading to a “two-tier” justice system, deepening a row with Downing Street.
Prime Minister Sir Keir Starmer said he was “disappointed” after the council refused to backtrack on guidance that encourages judges to request pre-sentence reports for offenders from particular backgrounds.
Number 10 said “all options are on the table” — including “reviewing the role and responsibilities” of the council — after the body said the updated guidelines due to come into force next week “did not require revision”.
Pre-sentence reports are prepared by probation officers to assist the court in determining sentences. They include information about the offender’s background and circumstances. Critics claim the guidelines would result in preferential treatment.
Under the new guidance, judges are advised that a pre-sentence report would normally be deemed necessary for someone with a minority ethnic, cultural and faith minority background. Other categories include young adults and women.
In a letter to justice secretary Shabana Mahmood, Sentencing Council chair Lord Justice William Davis noted that there was currently a “difference in sentencing outcomes for ethnic minorities”.
He said pre-sentence reports were not always compiled when they should be and that the council’s only concern was with “judges and magistrates being provided with as much information as possible”.
“If we had been satisfied that courts currently requested a pre-sentence report wherever and whenever one was necessary, we may not have included a list of cohorts,” Davis said.
He added that a recent meeting the council “respectfully disagreed with the proposition that the list of cohorts in the guideline represented an expression of policy”.
Critics including Robert Jenrick, Conservative shadow justice secretary, have claimed the guideline is an example of “two-tier justice”.
Jenrick has claimed the guidelines are “explicitly instructing judges to treat minorities differently”.
Mahmood said: “I have been clear in my view that these guidelines represent differential treatment, under which someone’s outcomes may be influenced by their race, culture or religion.
“This is unacceptable, and I formally set out my objections to this in a letter to the Sentencing Council last week. I am extremely disappointed by the Council’s response. All options are on the table and I will legislate if necessary.”
In his letter Davis said the body would include “some clarification of the language”, which he hoped would “correct the widespread misunderstanding which has emerged in the last few weeks”.
The Sentencing Council is an independent, non-departmental public body within the Ministry of Justice. Starmer this month criticised a proliferation of arm’s length bodies, telling ministers they should stop “outsourcing” decisions to outside bodies.
A consultation on the guidelines occurred in November 2023 and February 2024, before Labour took office in July.
Mahmood complained that the new Labour government “has not been consulted on these guidelines” and had “not been able to provide our view”.
In his letter Davis said the change had already been subject to a “full public consultation”.
