Sentencing Council’s new guidelines are corrosive and unfair

Good morning. I’m very grateful to Miranda for writing Friday’s newsletter, as it allowed me to focus on getting in the way of our movers in the morning to unpack our boxes. Had it not been for that, today’s newsletter would not have been written, as the computer I am typing it on would still be in a box.

In a sense I am also grateful to the Sentencing Council. The decision to stand firm on its changes to sentencing guidelines has put it at loggerheads with the government. Ministers are now set to legislate to over-rule them.

However, I think the changes are misjudged, with the potential for corrosive social consequences. So while I am grateful, I am also unnerved. As this is quite a chunky topic, it will run over several days. For now, below are some thoughts on why I think this is wrong-headed when it comes to the specific issue of racial disparity in the criminal justice system.

A little of what ails you

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. You are not more likely to be found guilty by a jury of your peers; there is no statistically significant difference at jury trial. There is, however, a statistically significant difference at sentencing.

This disparity is largely concentrated among specific types of offences — drug offences and crimes against the person — and is greatest for people in the “other” ethnic group (which most importantly includes people from a Gypsy, Roma or Traveller background — the group which essentially always has the worst outcomes from a public policy perspective, both here in the UK and across most of Europe). Here’s an indicative chart from the Ministry of Justice’s latest report:

This is the problem the Sentencing Council is seeking to address with its guidance for when judges should obtain a pre-sentence report. These include in aggravating and mitigating circumstances, and, crucially, can include a suggested sentence. From tomorrow, until the government prohibits it (as it is bringing legislation to do so), it will “normally be considered necessary” for a judge to obtain a pre-sentence report when the offender is from “an ethnic minority, cultural minority, and/or faith minority community”.

There’s a lot to get into here and I anticipate I will return to this topic on several occasions over the next few days and weeks. Let’s for a moment make the following assumptions:

1. The disparity in sentences is wholly the result of racism on the part of judges. They are more likely to reach for custodial sentences for the same offences, simply due to the offender’s ethnicity.

2. Pre-sentence reports significantly influence the decision of judges. Being made to read and digest one results in a fairer sentence being handed down.

Would that make it an appropriate lever to pull? No, I don’t think so.

I think for the intervention to be meaningful, you have to accept that pre-sentence reports improve judicial decision-making. In which case, why should that option be the default for minority offenders, but only utilised if other special conditions are met for white ones? If we think that pre-sentence reports result in judges making better decisions, it’s not fair for some offenders to be the beneficiary of better decisions and for others to not be.

Just as an illustration of that, 64 per cent of young offenders from “other” ethnic groups are eligible for free school meals (compared with about a quarter of the school-age population), while 63 per cent of young offenders from a “Black” minority background are. It seems a fair assumption that not having very much money is an aggravating factor for going on to commit a crime. So why should the 52 per cent of young “white” offenders eligible for FSM not automatically qualify for a pre-sentence report?

In addition, inserting differential treatment as a matter of policy on the grounds of ethnic, cultural or religious identity is, I think, corrosive. It is a lever that will prove highly controversial, risking eroding support for things we know work.

In addition, there are good reasons to believe that neither of the assumptions underlying the Sentencing Council’s changed approach hold true, for reasons I will outline in a future newsletter.

Now try this

For our last meal as Stoke Newington residents, we ate in its newest restaurant, Calong, which I’m pleased to report serves a wonderful fusion of Korean and European food. It is definitely worth the trip.

Readers have two opportunities to ask me questions: the first is via our Political Fix podcast and is open to everyone. The second is for students and recent graduates at my event with FT Schools on May 1, the sign-up form for which closes one week from now.

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