The Sentencing Council has pushed back against Justice Secretary Shabana Mahmood’s call to scrap new sentencing guidance, arguing that both major political parties had been aware of the plans since 2022 and had not raised objections. Mahmood recently urged the council to reconsider its directive for judges to consider the backgrounds of offenders from ethnic minority groups and other specific circumstances before sentencing. Critics, including shadow justice secretary Robert Jenrick, have claimed the changes create a “two-tier justice” system. However, Lord Justice William Davis, chair of the Sentencing Council, stated that ministers had been briefed on the plans, which had been in development for three years, and that sentencing cannot be dictated by politicians.
The new guidance advises judges in England and Wales to request pre-sentence reports for offenders from minority backgrounds facing jail for the first time, as well as for women, pregnant individuals, and those with addictions or learning difficulties. These reports provide insights into an offender’s circumstances, risk of reoffending, and rehabilitation prospects but do not determine the sentence. Mahmood, who comes from an ethnic minority background, objected to the changes, emphasizing that all individuals should be treated equally under the law.
In response, Lord Justice Davis defended the guidelines, explaining that ethnic minority offenders often receive longer sentences and that the goal is to ensure consistency in sentencing. He pointed out that both Conservative and Labour representatives had multiple opportunities over three years to oppose the changes but did not. Public consultation on the guidance had received minimal opposition regarding the reference to ethnic minorities, and previous Conservative ministers had welcomed the initiative.
While ministers technically have the power to intervene in the council’s decisions, this authority has never been exercised in a case where extensive consultation had already taken place. Lord Justice Davis indicated that he would seek legal advice on whether such an intervention would be valid, maintaining that judicial independence must be upheld and that sentencing should not be dictated by government ministers.
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