The sentencing council recently released new guidelines on pre-sentence reports which has caused massive - and necessary - fall out. The guidelines instructed judges and magistrates to request a pre-sentence report for certain groups before sentencing. They specifically stated that ‘a pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts,’ and continued to list different minority groups in the criminal justice system: a young adult, female, pregnant or post-natal, someone from an ethnic minority, cultural minority, and/or faith minority community, trans people, someone with addiction issues, serious health issues, a victim of domestic abuse, exploitation, modern slavery and trafficking. These are either vulnerable groups or groups over-represented in the criminal justice system. The guidelines aimed to address this issue by providing a judge or magistrate with a more detailed look at the defendants’ character, background, and mitigating factors via a pre-sentence report.
The guidelines saw shadow justice secretary Robert Jenrick up in arms about a ‘two-tier justice system,’ with Robert Jenrick stating that the guidelines had ‘blatant bias against Christians and straight white men.' Pressure from justice secretary Shabana Mahmood and the threat of legislation from prime minister Kier Starmer eventually made the sentencing council back down, delaying the implementation of the new guidelines. Meanwhile, the National Police Chiefs Council (NPCC) released their long-awaited anti-racism commitment. Among other points, the Race Action Plan recognises that it is important to understand racism and racialisation when attempting to produce ‘equality of outcomes’ in policing. Or in other words, for the police to stop being racist, they first need to acknowledge racism and how it works. This does not seem to be a particularly radical statement. However, Robert Jenrick, the shadow home secretary Chris Philp and the Daily Mail felt differently; again, complaining of a two-tier justice system where white people are treated more harshly by the police than Black or Brown people, and demanding that the Government legislate to override the NPCC’s anti-racism commitment.
These spats may have you worrying that the independence of the judiciary and the police is being impinged by government interference. Or, it may leave you questioning why a phrase that was previously the rallying call of the far-right riots last summer has suddenly entered the political scene as a supposedly valid critique of criminal justice reform. Well, ironically, these concerns are not wrong – we do currently live in a two-tier justice system – but not the one they are shouting about.
Racial disparities that discriminate against Black and Brown people exist at every point of the criminal justice system. This reality is most acute for Black people. Black, Brown and other racialised minorities are 4 times more likely to be stopped and searched by the police. Under suspicionless Section 60 stop and searches these figures soar: Black people are 18 times more likely to be stopped and searched under this power than white people, and outside of London this increases to 43 times more likely. The grim reality of racist, two-tier policing also impacts children, with Black children in England and Wales four times more likely to be strip-searched.
This extreme disproportionality does not change with charging, conviction, sentencing or prison time served. Indeed, the Lammy Review (2017) highlighted this racial disproportionality throughout the police, court and prison system. For example, in London, the Met were found to charge Black people at 5 times the rate of white people for cannabis possession. ‘BAME’ men were 16% more likely to be remanded in custody. Black defendants are 40% more likely to receive a custodial sentence than white people for equivalent offences. According to the previous Tory government’s own data, defendants from ‘ethnic minorities’ are more likely than white defendants to receive an immediate custodial sentence, rather than a community sentence for the same level of offence. The data also tells us that ethnic minorities receive higher average custodial sentence lengths for equivalent offences then their white counterparts, and Black prisoners serve longer times in prison for similar sentences than any other ethnicity. At sentencing, Black children receive longer custodial sentences than their counterparts and over half of children in prison are from ethnic minorities, despite only making up 18% of total population.
Both the proposed sentencing guidelines and the NPCC’s anti-racism plan are aimed at addressing this immense racial disproportionality. These proposals recognise that to get to a point where Black and Brown people have equal outcomes in the criminal justice system (instead of being overpoliced, overcharged, over-prosecuted, and over-prisoned), we need to adapt what is causing this: policing and sentencing. As racialised people do not receive the same treatment by the police or in the courts as their white counter parts, an approach aimed to address this disproportionality must of course propose changes for these groups specifically. It’s the basic difference between the two concepts ‘equality’ and ‘equity’: equality is a blanket approach to treat everyone the same regardless of circumstances or characteristics, while equity recognises that some groups face certain barriers and disadvantages, and require specific support or approaches to address them. To achieve equality of outcomes in the criminal justice system for everyone, we first need an equitable approach. Something which you would hope that our politicians would be able to grasp.
If we look at the example of cannabis possession, Black people are 9 times more likely to be stopped and searched for suspected drug possession, despite using drugs at lower rates than white people. The Lammy Review found in London, the Met charged Black people at 5 times the rate of white people for cannabis possession specifically. Another study found that in same year, Black people were prosecuted for cannabis possession at 12 times the rate of white people, despite lower self-reported rates of use. Overall, Black people made up a quarter of those convicted of cannabis possession even though they comprise less than 4 per cent of the population according to the 2021 census. The racial biases of both the police and courts is evident: despite being less likely to use drugs, Black people are more likely be stopped and searched by the police for possession, more likely to be charged, and more likely to be prosecuted for cannabis possession at a stark rate compared with white people. Judges must take this into consideration when sentencing just as much as a police officer should while policing. This would be an equitable move that would result in more equal outcomes for Black and white people facing criminal prosecution for cannabis consumption. If we want equality of outcomes for people of any race in our criminal justice system, we first need to treat people equitably.
Both these proposals not only benefit anyone committed to an anti-racist criminal justice system (as you would hope our justice secretary and former human rights lawyer prime minister would be) but also level the playing field for all disadvantaged groups in society, thus addressing the actual two-tier justice system that we currently live under. You would think these proposals would be easy to get behind, so it begs the question – why haven’t they been implemented?
By a StopWatch volunteer
All blogposts are published with the permission of the author. The views expressed are solely the author’s own and do not necessarily represent the views of StopWatch UK.