Justice Secretary calls for controversial 'two-tier' sentencing rules to be 'reconsidered' as she threatens law change

6 March 2025, 15:20

The Justice Secretary has called on the independent Sentencing Council to “reconsider” its controversial new guidelines or face being overruled.

The Sentencing Council has come under fire after publishing new principles for courts to follow when imposing community and custodial sentences, including whether to suspend jail time, on Wednesday.

The updated guidance, which comes into force from April, has been accused of introducing a “two-tier” system after requesting a person’s ethnicity, culture, faith and gender is considered in a pre-sentence report.

Now Justice Secretary Shabana Mahmood has written to the chair of the Sentencing Council urging them to reconsider the guidance and threatened government intervention if they aren’t.

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She wrote: "A pre-sentence report can be instrumental in assisting courts in the determination of their sentence.

"But the access to one should not be determined by an offender's ethnicity, culture or religion.

"As someone who is from an ethnic minority background myself, I do not stand for differential treatment before the law like this.

"For that reason, I am requesting that you reconsider the imposition of this guideline as soon as possible."

She added the Justice Department will now be "reviewing the role and powers of the Sentencing Council" to determine if they should be in control of “powers of such import.”

Hitting out at the guidelines, Shadow justice secretary Robert Jenrick said in the Commons: "The new sentencing guidelines published alongside this statement will make a custodial sentence less likely for those 'from an ethnic minority, cultural minority, and/or faith minority community'.

"Why is the Justice Secretary enshrining this double standard, this two-tier approach to sentencing? It is an inversion of the rule of law. Conservative members believe in equality under the law; why does she not?"

At the time, Ms Mahmood, replied: "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."

The Sentencing Council advises in a new section that effectiveness of a sentence depends on defendants' circumstances, and that rehabilitative sentences can be more effective in reducing re-offending than a short term behind bars.

It also adds new evidence for deciding sentences, for example for a young person, stating: "The disadvantages young adult offenders face in the criminal justice system may be compounded for young adult offenders from an ethnic minority background.

"For some offences, there is evidence of a disparity in sentence outcomes for offenders from some ethnic minority backgrounds."

Following the comments, chairman of the Sentencing Council for England and Wales Lord Justice William Davis said one of the reasons for the updated guidance was to make sure courts have the "most comprehensive information available" to hand out an appropriate sentence.

On pre-sentence reports, he added: "The reasons for including groups vary but include evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment.

"Pre-sentence reports provide the court with information about the offender; they are not an indication of sentence. "Sentences are decided by the independent judiciary, following sentencing guidelines and taking into account all the circumstances of the individual offence and the individual offender."

Elsewhere, guidance that tells courts to "avoid" sending pregnant women or mothers of babies to prison has been welcomed by campaigners.

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, while lawyer Liz Forrester, from group No Births Behind Bars, said it finally recognises the "deadly impact" of prison on babies and pregnant women.

Lord Justice Davis 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."