Shabana Mahmood is taking on the judges over the sentencing guidance (Image: Getty)
A “two-tier justice” plan that could mean ethnic minority criminals get softer sentences has been defended by top judges. The Sentencing Council insisted it was right to say offenders from ethnic minorities should be treated differently and hit back at Shabana Mahmood after she criticised new guidelines.
The Justice Secretary has urged the Sentencing Council to think again after it told judges to take into account a convict’s ethnicity, faith or gender when deciding whether a pre-sentence report is needed. A pre-sentence report outlines any mitigating factors in a case and can mean a criminal is less likely to be jailed.
Ms Mahmood, who is also Lord Chancellor, hinted that new laws could be introduced if the Sentencing Council failed to think again. But Lord Justice Williams, chairman of the Sentencing Council, responded by telling Ms Mahmood that she was threatening the independence of the courts.
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In a letter to her, he said: “The council preserves the critical constitutional position of the independent judiciary in relation to sentencing.
“In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached.”
On the new guidance for judges to consider a criminal’s ethnicity before deciding their punishment, the chairman added there is “good evidence” offenders from ethnic minorities are currently treated more harshly.
He insisted: “Offenders from some ethnic minority backgrounds are more likely to receive an immediate custodial sentence than white offenders. In some offence-specific guidelines, this fact is highlighted.
“Why this disparity exists remains unclear. The council’s view is that providing a sentencer with as much information as possible about the offender is one means by which such disparity might be addressed. This is why ethnic minority offenders were included in the list of cohorts.”
The Sentencing Council has 14 members including eight judges. Other members include a police chief constable and the director of public prosecutions.
Last week, the council published new guidelines for courts to follow when imposing community and custodial sentences, including whether to suspend jail time.
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The changes, which come into force from April, detail that a pre-sentence report would usually be necessary before handing out punishment for someone of an ethnic or cultural minority.
Ms Mahmood threatened to overrule the Sentencing Council by changing the law as she called for guidance for judges to consider a criminal’s ethnicity before deciding their punishment to be reconsidered “as soon as possible”.
In a letter to the independent body, the Lord Chancellor said she “must make clear my displeasure” at the changes, adding: “I do not stand for differential treatment before the law like this.”
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.”
She requested an urgent meeting with Lord Justice Davis, adding that “no minister” in the Government approved of the guidance or was involved in the consultation.
Ms Mahmood also said she was considering whether policy decisions such as this should be made by the Sentencing Council and what role MPs should play.
“For that reason, I will be reviewing the role and powers of the Sentencing Council alongside the work of the Independent Sentencing Review,” she said.
“If necessary, I will legislate in the Sentencing Bill that will follow that review.”
Shadow Justice Secretary Robert Jenrick said he will legally challenge the guidance on the grounds it enshrines “anti-white” and “anti-Christian” bias in the criminal justice system.
Conservative leader Kemi Badenoch had earlier called for Ms Mahmood to change the law and said the “will back her”.
“Ministers should decide, not quangos. Labour need to grip this,” she said.