Jenrick said new sentencing rules show there is ‘blatant discrimination against straight white men’ in the justice system
Concerns have been raised that updated sentencing guidance for judges will discriminate against “straight white men” and make it more likely that ethnic minority and transgender criminals avoid prison.
The Sentencing Council, an independent body which publishes guidelines for the courts to ensure consistency, on Wednesday advised judges that they should consider a pre-sentence report for certain types of offenders.
A pre-sentence report should play a “critical role” before handing out punishment for someone of an ethnic, cultural or faith minority, alongside other groups such as young adults aged 18 to 25, women and pregnant women.
This includes details about the circumstances of the crime and the offender. But the changes have received criticism from both Labour and the Tories.
Justice Secretary Shabana Mahmood said the new guidance proved “differential treatment” for minorities, while shadow minister Robert Jenrick said it discriminates against “straight white men”.
Here, The i Paper takes a look at some of the claims about the new guidance and how they stack up.
What have Labour and the Tories said?
Reacting to the new guidelines, Jenrick said the report showed “in black and white” that there is “blatant discrimination against straight white men” in the justice system.
“Under Two-Tier Keir, our justice system is set to have an anti-white and anti-Christian bias,” he said.
He later told Times Radio: “They say that you are less likely to get a custodial sentence because your case would be handled through a pre-sentencing report commissioned by a judge – if you’re a woman, if you’re trans, if you’re neuro-diverse, if you’re an ethnic minority, if you’re from a minority faith group, which presumably means anyone who isn’t Christian.
“Essentially Christian and straight white men, among other groups, will be treated differently to the rest of society.”
Mahmood, meanwhile, told the Commons yesterday: “As somebody from an ethnic minority background, I do not stand for any differential treatment before the law for anyone.
“There will never be a two-tier sentencing approach under my watch or under this Labour Government.”
Acknowledging the Sentencing Council is “entirely independent” from her department, Mahmood said she would write to the body to “register my displeasure” and “recommend reversing this change to the guidance”.
“These guidelines do not represent my views or the views of this Government,” she added.
The previous government, in which Jenrick was a minister, was also consulted on the change during the consultation period between November 2023 and February 2024.
What has the Sentencing Council said?
The council said the pre-sentence report, drawn up when the defendant is from a background a judge or court may deem relevant, is “pivotal in helping the court decide whether to impose a custodial or community order”.
It also advises judges on “where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence”.
This includes factors about whether an offender is from an “ethnic minority, cultural minority and/or faith minority community”, and whether the defendant has disclosed they are transgender.
Existing factors have previously only taken into consideration: whether an offender has previously served a custodial sentence; is aged between 18 and 25; is a woman; is pregnant or has an infant child; suffers addictions; is diagnosed with a chronic medical condition, disability or mental ill health problem; or is a victim of domestic abuse.
Will white men be discriminated against?
Sentences – for any defendant, no matter their background or ethnicity – are decided by an independent judiciary in a court of law, and not the Sentencing Council.
The guidance provides additional information for the court and does not dictate the sentence.
The changes by the council, they say, are all aimed at tackling inequality within the justice system as some groups are disproportionately more likely to receive custodial sentences than others.
“For some offences, there is evidence of a disparity in sentence outcomes for offenders from some ethnic minority backgrounds,” the report said.
Lord Justice William Davis, chairman for the council, said a sentence properly tailored to individual circumstances of the offender had the “greatest likelihood” of being effective.
He added of the updated guidelines: “It will ensure that the principles for imposing community and custodial sentences continue to be consistently and transparently applied by the courts and that such sentences are the most suitable and appropriate for the offender and offence before them.”
Will ethnic minorities or trans people be more likely to avoid prison?
The Sentencing Council only advises courts to “avoid” custodial sentencing for one demographic – pregnant women or mothers of new babies.
The guidance added: “For offences that carry a mandatory minimum custodial sentence, pregnancy and the postnatal period may contribute to ‘exceptional circumstances’ that could justify not imposing the statutory minimum sentence.”
Reacting to the move, Janey Starling, co-director of feminist campaign group Level Up, said the changes are a “huge milestone” in the campaign to end imprisoning pregnant women and mothers.
Lawyer Liz Forrester, from group No Births Behind Bars, said it finally recognises the “deadly impact” of prison on babies and pregnant women.
Courts have not been told to avoid or be more lenient with sentencing for any ethnic or LGBTQ+ group.
What have legal experts said?
Helena Kennedy, the president of Justice, a law reform thinktank, and director of the International Bar Association’s Institute of Human Rights, told the Today programme that a “well informed court” – that included a pre-sentence report – would always provide a better outcome for society.
The Labour Baroness said: “The real issue is, the system at the moment, all the evidence shows that it’s disproportionately doing unfairness to certain sections of our society.
“Women are certainly in that category. Young people from ethnic minorities are in that category. And so a court knowing more about them is a good thing.”
Kennedy said the guidance changes would produce “better outcomes in our courts”, and accused Jenrick ad Mahmood of “introducing Trumpism into our system”.
She added: “This is about wokeness. They want to say this is about being woke. It’s not. It’s about basing the system on real evidence of where there are failures, and knowing more helps to get better outcomes.”