"Two Tier" Sentencing

[snoozeofreason]

There is a lot of irresponsible, inaccurate, and inflammatory rhetoric flying around at the moment concerning supposed "Two Tier" sentencing, particularly of offenders from ethnic minorities. As an example Bob Jenrick has said in parliament that

Lastly, 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?

In reality, the row is over "Pre-Sentence Reports" (PSRs). These set out circumstances that a judge might want to consider before passing sentence on a convicted offender. The advice on when to request such a report has recently been revised, and guidelines shortly to take effect now say that

A pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts:

at risk of first custodial sentence and/or at risk of a custodial sentence of 2 years or less (after taking into account any reduction for guilty plea)

• a young adult (typically 18-25 years; see further information below at section 3)

• female (see further information below at section 3)

• from an ethnic minority, cultural minority, and/or faith minority community

• pregnant or post-natal

• sole or primary carer for dependent relatives

Or if the court considers that one or more of the following may apply to the offender:

• has disclosed they are transgender

• has or may have any addiction issues

• has or may have a serious chronic medical condition or physical disability, or mental ill health, learning disabilities (including developmental disorders and neurodiverse conditions) or brain injury/damage

• or; the court considers that the offender is, or there is a risk that they may have been, a victim of:
  • domestic abuse, physical or sexual abuse, violent or threatening behaviour, coercive or controlling behaviour, economic, psychological, emotional or any other abuse
  • modern slavery or trafficking, or
  • coercion, grooming, intimidation or exploitation.

This is a non-exhaustive list and a PSR can still be necessary if the individual does not fall into one of these cohorts. A report may also be necessary for a variety of requirements (see section on Requirements (section 7) below.)

Courts should refer to the Equal Treatment Bench Book for more guidance on how to ensure fair treatment and avoid disparity of outcomes for different groups.

Magistrates: Consult your legal adviser before deciding to sentence to a community order or custodial sentence without a pre-sentence report.
Indication to the Probation Service

The bolding is mine, and it is the bolded sentence about ethnic, cultural, and faith minorities that is responsible for the "two-tier" rhetoric. The reason for adding that sentence isn't because anyone feels that members of those groups should get lower sentences, it is because of a concern that they may be getting higher sentences than other offenders convicted of similar crimes.

Most importantly,

• The guidance doesn't mandate PSRs for any of the groups listed above.

• The guidance certainly does not forbid PSRs for any of the groups not listed above.

• A PSR does not include any recommendation about what sentence should be handed down. It simply sets out circumstances that should be considered. In some cases this might result in a lower sentence. In others it might result in a higher sentence. I suspect that, in many cases, it makes no difference.

Unfortunately, as Justice Secretary, Shabana Mahmood MP seems to find herself unable to push back against this rhetoric, and is leaning on the sentencing council to alter the guidelines, and even suggesting that the law might be changed to limit the sentencing council's independence. The sentencing council, to its credit, is resisting, with Lord Justice Davis writing to to Mahmood explaining the reasons for the change.

Given the traction that myths about "Two-Tier" justice in the UK have gained, even in countries outside the UK, it's all a bit worrying.

[headshot]

https://www.theguardian.com/law/2025/ma ... guidelines

Ministers expect the Sentencing Council to suspend plans for new sentencing guidelines that could have led to criminals getting different sentences depending on their age, sex and ethnicity.

The expected climbdown hours before the guidance would have come into force comes after a standoff with the Ministry of Justice and threats of emergency legislation to override the guidelines, which provoked claims of a “two tier” justice system.

[IvanV]

There is a problem that offenders do in fact get different sentences depending on their ethnicity.

The problem is that offenders from ethnic minorities get longer sentences.

Of course, this has nothing to do with what pre-sentencing reports are obtained according to the ethnicity of the person found guilty of an offence.

So, as ever, we have right-wingers (Mr Jenrick in this case) creating a perception of a problem in the justice system that doesn't exist, and demanding a "solution" that might make it worse. And he has framed it that the government feels compelled to remove non-existent positive discrimination.

For example, during Kenneth Clarke's period as justice secretary, the perception was created - quite falsely - that British defendants got more public money to defend themselves than happened in other countries, and this was leading to lots of criminals getting off. This was how they softened us up to slash the legal aid system. The trick to make it look like it was true was to define the money in terms that meant that people in other countries didn't get that money, and ignore the differently defined money they actually got. The real problem was that the British justice system is rigged against defendants, and a lot of them are being found guilty inappropriately and getting inappropriate restitution. What a wonderful way to distract from that problem to get away with getting lots of people to believe that the opposite was the case, and actually make it worse.

Probably it doesn't matter very much if pre-sentencing report guidelines do or do not specifically require additional reports in the case of ethnic minority criminals. So maybe Mr Jenrick is making a noise about something that doesn't matter.

But what would be nice - and supremely appropriate - would be if the government got around, in a little while, to acknowledging the reality of ethnic discrimination in sentencing, and did something patently non-discriminatory to try and address it.

[bob sterman]

Most importantly,

• The guidance doesn't mandate PSRs for any of the groups listed above.

• The guidance certainly does not forbid PSRs for any of the groups not listed above.

Technically true - there are no absolutes but it's strongly weighted in that direction with this line...

"A pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of the following cohorts"

...and the idea that PSRs are permitted but not normally expected for other groups. And overall the majority of sentences are passed without PSRs.

[dyqik]

Most important is the last bullet point above, as was also pointed out by a prominent barrister: PSRs can cause sentences to go up as well as down.

Requiring them is not a requirement that they be used to reduce sentences.

[snoozeofreason]

Most important is the last bullet point above, as was also pointed out by a prominent barrister: PSRs can cause sentences to go up as well as down.

Requiring them is not a requirement that they be used to reduce sentences.

On Bluesky, Joana Hardy-Susskind (author of the excellent You Do Not Have to Say Anything podcast) lists some of the things that might mean a PSR results in an increased sentence.

Everyone seems to think a Pre-Sentence Report is some kind of gateway to a get-out-of-jail-free card but, honestly, defence barristers everywhere DREAD reading them.

Your ‘two-tier justice’ is far from the reality.

Things not to say or do in your Pre-Sentence Report:

* Not show up to the appointment five times leaving the judge with no option but to lock you up because you couldn’t be bothered.

* Tell the probation officer you will ‘do it again’. It being the crime.

* Ask the probation officer ‘which crime’ they are on about when the police have only actually detected one.

* Tell the probation service what you think of the judge when what you think of the judge is… not a lot.

* Tell the probation officer your spouse / mum / lawyer thought it might be wise to consider an apology but that you’re not sorry at all.

* Bring your dog to the appointment when your offence is under dangerous dogs legislation.

* Miss the appointment as you have been arrested.

* Tell your probation officer about the lengthy and litigious complaints and appeals process you are embarking upon.

* And, spectacularly, include your probation officer in a mass text message spree offering to sell them drugs.

She is a practising criminal barrister, so I suspect that the above are drawn from her experience, rather than her imagination.