With new court recommendations fuelling claims of “two-tier justice” in Britain, we have sifted through the guidelines at the centre of the controversy – and found one key detail that is being underreported – and likely to cause concern.
The furore revolves around new sentencing guidelines for England and Wales. These guidelines, set by the Sentencing Council, recommend that a pre-sentence report (PSR) should “normally be considered necessary” before sentencing offenders from ethnic, cultural, or faith minorities.
A PSR provides background information on a defendant to help the court determine an appropriate sentence.
The part of the guidelines that appears to have sparked the most controversy relates to section three of the report, which states that a pre-sentence report will normally be considered necessary if the offender is from an ethnic minority, cultural minority, and/or faith minority community.
Justice Secretary Shabana Mahmood has urged the Sentencing Council to reconsider the new guidance, which would take account of a criminal’s ethnicity before judges decide punishment.
The Justice Secretary added she will review its powers and change the law if necessary.
“As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind”, Mahmood said.
“There will never be a two-tier sentencing approach under my watch.”
The guidelines on transgenderism have received less focus than a criminal’s ethnicity
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Kemi Badenoch called for the Justice Secretary to change the law, and said the Conservatives “will back her” after she raised concerns over the recommendations.
Although the focus has largely been on the differential treatment of ethnic minority criminals, the report goes on to recommend that a court consider if an offender has “disclosed if they are transgender”.
Also contained within section three is the recommendation that Courts refer to the Equal Treatment Bench Book, which in July updated its guidance on how trans-identified defendants should be addressed in court.
The Equal Treatment Bench Book sets out how judges should communicate with witnesses, defendants and lawyers in courts and tribunals in England and Wales.
In July last year, significant revisions were made to the chapter on ‘Sex’, which states that “Judges generally respect what someone prefers to be called”, irrespective of whether they have physically changed gender.
“It should be possible to work on the basis of a person’s chosen gender identity and their preferred name/pronouns, ‘he/she or they’, for most court and tribunal purposes, regardless of whether they have obtained legal recognition of their sex/gender by way of a gender recognition certificate,” it says.
However, the chapter goes on to state that “there will be situations where it is clearly inappropriate”, such as in cases where a victim may have been raped by a transgender person.
Here, the guidance says judges should respect how they want to define their experience of the assault.
“For example, a victim of domestic abuse, sexual violence or assault by a trans person is likely to describe the perpetrator in accordance with the victim’s experience and perception of the events. To do otherwise would be likely to affect the quality of their evidence of traumatic events.”
Shadow Justice Secretary Robert Jenrick has alluded to this reference to transgender offenders in the latest Sentencing Council Recommendations in a scathing attack, claiming that the advice on sentencing shows a “bias against straight white men”.
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Kemi Badenoch called for the Justice Secretary to change the law, and said the Conservatives “will back her”
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Lord Justice William Davis insists that the reforms, scheduled to take effect in April, address evidence of sentencing disparities, challenges faced within the criminal justice system, and the complex circumstances of individual offenders.
The chair of the Sentencing Council for England and Wales said: “PSRs provide the court with information about the offender; they are not an indication of sentence. Sentences are decided by the independent judiciary”.
He added that a punishment tailored to the offender had the “greatest likelihood” of being effective.
The latest available government data also shows that white defendants are more likely to have a shorter jail sentence than any other ethnic group.