It was only a few years ago that a British justice secretary proudly stood up in parliament and pledged to “address racial disparity in our justice system”. He was even specific about the tools that could be used to achieve this aim, stating that the government aimed “to improve the way in which pre-sentence reports are prepared, in order to eliminate bias”. It was the summer of 2020, and these were the words of Tory minister Robert Buckland, delivered to approving nods from his colleagues. In wake of the Black Lives Matter street protests, Conservative politicians were falling over themselves to say that they wanted to “do more” to address the racial inequality that was evident in the institutions of the country.
Yet last week the Tories’ current shadow justice secretary, Robert Jenrick, declared the new sentencing guidelines, which from 1 April are due to put his predecessor’s promises into effect, are nothing more than an attack “against straight white men”. Seizing an opportunity to make political hay out of scare stories about “two-tier policing”, the entire Conservative Party appears to be indulging in selective amnesia when declaring its shock and horror at these reforms, despite their being long anticipated by both main political parties. The Labour government is following the herd: the Justice Secretary Shabana Mahmood has written to the Sentencing Council, which is introducing the guidelines, to “register [her] displeasure”.
The Sentencing Council is independent from ministers, and under no obligation to follow Mahmood’s interjection. But it also has firm grounds for recommending these changes. The starting place for anyone looking to understand the new guidelines should be the fact that, as a nation, we imprison far more people than any of our European neighbours. England and Wales have a rate of incarceration that is twice as high as Germany and three times the rate found in Italy and Spain. At a time of acute public resource squeezes, this bulging prison system is costing the country £3.4bn annually. Overcrowding is already a chronic issue, with criminals now being released early to make space.
Pre-sentence reports (PSRs) are a tool that could reduce this cost. Their purpose is to help judges make more informed sentencing decisions and identify instances in which alternatives to imprisonment could be more suitable. They are not binding and certainly not the “get out of jail free” cards they have been presented as by critics. They simply provide courts with a broader context, before it settles on the most appropriate punishment for a crime. One element of the new guidelines buried in the reaction is that they actually encourage the use of PSRs, generally, pushing for courts to use them unless it considers them unnecessary in a specific case. (For example, courts might not consider a PSR for a defendant being convicted for the same crime for the umpteenth time.)
However, the guidelines urge the courts to always consider the relevance of a PSR in several circumstances. These include when the defendant is aged 18 to 25, has an addiction or mental health issues, has caring responsibilities, or is female. Yet Jenrick and the angry newspaper headlines that have pushed his argument of “two-tier policing” over the past week have mainly taken umbrage with one additional reason for a court to consider a PSR: when the defendant is from an ethnic minority.
Why is there such uproar about the inclusion of ethnic minorities on this list of criteria? Everyone understood the rationale behind this decision until very recently. Since the Macpherson report in 1999, commissioned after the murder of Stephen Lawrence, the over-representation of racial minorities in the criminal justice system has been well-evidenced by government report after report after report. For example, the 2017 Lammy review (commissioned by the governing Conservatives) found that, for drug offences, the odds of receiving a prison sentence were a staggering 240 per cent higher for black and minority ethnic offenders than white offenders. Furthermore, a letter from the Sentencing Council this Monday (10 March) reminded politicians that when the draft version of these guidelines were initially released, hardly any of them disputed the inclusion of ethnic minorities in the list of criteria, nor did the media, which at that time was only concerned about whether female defendants should be on this list.
However, over the past year, there has been a concerted effort by right-wing commentators to promote the idea that Britain employs a “two-tier” criminal justice system that actually favours ethnic minorities. Of course, for anyone who has ever been inside a UK prison and seen its racial demographics, this will seem what it is: a politically convenient fiction. But that doesn’t matter to the anonymous, shady social media accounts that have been trying to mainstream this theory since the riots following the Southport murders last summer.
In this new context, Jenrick and his colleagues are determined to make PSRs a wedge issue. And with Labour lacking the courage to push back against this narrative, the Sentencing Council’s guidelines are now under threat from all sides. If Jenrick succeeds in corralling the government to change the law, the real victim will be the British people, who will be left funding a bloated and broken prison system that locks up far too many people of all colours. If universalism was truly his concern, Jenrick could advocate for the government to make the resources available to ensure the broader application of PSRs among all defendants, as we see in countries like Denmark. This could lead to a less expensive system for everyone (each prisoner costs the taxpayer £40,000 a year).
Instead, the goal appears to be to exploit a social cleavage along racial lines, rallying the public to reject a logical and long-awaited attempt to modernise our criminal justice system, just in case it comes with the unpleasant side-effect of reducing a deep-seated racial disparity that has been evident for decades. In the post-truth climate of 2025, we can expect to see more of this kind of divide-and-conquer politics. As politicians of the populist right compete furiously to champion a politics framed around ethnicity, issues that were settled yesterday will be reanimated and redefined, all to keep an impoverished public fighting itself.
[See also: How racist are British schools?]
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