Courts knowing more about the people they are sentencing is a good thing. Last month’s attack by the shadow justice secretary, Robert Jenrick, on guidelines recommending that individuals from ethnic and religious minorities, as well as women and young adults, should have pre-sentence reports written about them, typifies the corrosive cultural politics he specialises in.
Mr Jenrick wants to undermine the independence of the judiciary by changing the law so that the secretary of state, and not the 14-member Sentencing Council for England and Wales, has the final say. The guidelines have now been paused, after the government introduced legislation that would make parts of them illegal.
Mr Jenrick is playing with populist politics. In claiming that courts following the guidelines would be biased against Christians and “straight white men”, he was fomenting racial and religious divisions. Since there is nothing in the guidelines about sexual orientation, and “faith minority community” could include many Christians (such as Catholics or Quakers), his claims were not only damaging but false. Inflammatory claims about “two-tier justice” deliberately raised the temperature on what ought to be a calm, expert-led process. They also distract from important practical issues such as the high vacancy rate in the probation service. Without staff, the high-quality reports that courts need cannot be produced.
Racial disparities in sentencing, as well as policing, are widely recognised, particularly in relation to black men convicted of drugs offences. The most recent research finds that, while overall disparities are not as wide as was claimed in the landmark Lammy report, and class bias in sentencing can also be identified, black offenders in England and Wales are 40% more likely to be jailed than white people convicted of equivalent crimes.
It should not be controversial to propose the more frequent use of reports, as one means of addressing this problem and others – including the harm caused to children when their mothers are jailed. But presumably out of fear that rightwing attempts to stoke up a sense of grievance – particularly among white voters – would strike a chord, the justice secretary, Shabana Mahmood, took up the cause. Unless the government changes its mind, it will soon be illegal to give advice on pre-sentence reports that differentiates between defendants on the basis of “personal characteristics” – although consideration of circumstances will still be allowed.
Law and order has long been a favourite theme of authoritarian populists. A previous draft of the guidelines was rejected by Ms Mahmood’s Tory predecessor, Alex Chalk. She should have seen trouble coming and held her nerve when it did. The relationship between the Sentencing Council and her ministry, as well as with parliament, appears underdeveloped. The last time its chair gave evidence to the justice committee was in 2022.
Ms Mahmood’s job is far from easy. Prisons are chronically overcrowded and the public accounts committee warned recently that delivering 20,000 more places will cost £4.2bn more than planned. Things were left in such bad shape by the Tories that Ms Mahmood released thousands of prisoners early last autumn. Ministers are waiting for a report from the former Conservative justice secretary David Gauke before deciding what to do next.
It is impossible to see a way out of this crisis that does not involve the increased use of community sentences, supported by technology and a strengthened probation service. Ms Mahmood urgently needs to reclaim the initiative. Cynical attempts to portray white Christian men as the victims of equality-mad judges should be dismissed out of hand.
