England: Sentencing Council pushes back over ‘two-tier justice’ plans

The Sentencing Council said that ministers from both major parties or their representatives had been aware of the plans since 2022 and had not objected.

The response comes after Justice Secretary Shabana Mahmood last week wrote to the council, urging it to reconsider guidance that directs judges to review the lives of offenders from ethnic minority and other backgrounds before determining punishment.

Opposition politicians have argued the changes amount to a “two-tier justice” system.

Lord Justice William Davis, chairman of the Sentencing Council, said Ms Mahmood’s officials had been fully briefed on the plans, which had been in development for three years.

He stated that ministers could not “dictate” sentencing and that he would have to seek legal advice on Ms Mahmood’s powers over the council’s work.

This raises the possibility that the body advising judges on sentencing may take legal action to clarify whether the justice secretary has authority over judicial decision-making.

The dispute arose after the Sentencing Council – which provides guidance to judges and magistrates on sentencing complexities – issued new guidance for England and Wales regarding when a court should order a pre-sentence report into an offender’s background.

These reports do not bind judges but offer insight into why an individual committed a crime, their risk of reoffending, and their potential for rehabilitation outside of prison. The new guidelines direct judges to order a pre-sentence report if an offender is from a minority background, facing jail for the first time, a woman, or pregnant.

They also recommend that reports should be considered in a broader range of cases, including when an offender has an addiction, is transgender, or has learning difficulties.