Shabana Mahmood threatens law change after ‘two-tier’ row

Justice Secretary Shabana Mahmood has told the Sentencing Council she will review its powers and “legislate, if necessary”, following a row over its new guidance on sending people to jail.

The changes, which are due to come into force in England and Wales next month, would make the ethnicity or faith of an offender a bigger factor when deciding whether to jail them.

Ministers do not have the power to overturn the guidance, but in a letter Mahmood urged the council’s chairman to reconsider “as soon as possible”.

Conservative shadow justice secretary Robert Jenrick said the new rules were “anti-white” and “anti-Christian” and amounted to “two-tier justice”.

In a post on social media, he said that if the government did not act he would challenge the rules in court.

The Sentencing Council said the guidance would ensure courts had the “most comprehensive information available” to hand out an appropriate sentence and could address disadvantages faced within the criminal justice system.

Official figures show that offenders from ethnic minorities consistently get longer sentences than white offenders for indictable offences.

Writing to Lord Justice William Davis, chairman of the Sentencing Council, Mahmood said she wanted to “make clear my displeasure” at the changes.

“As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law,” she wrote.

She said she would be “considering whether policy decisions of such import should be made by the Sentencing Council”.

A review of the council’s role and powers will now take place alongside the existing review into sentencing being led by former Tory minister David Gauke.

Mahmood concluded her letter by warning the council that following the review she would “legislate if necessary”.

Prime Minister Sir Keir Starmer – who previously sat on the Sentencing Council when he was director of public prosecutions – said he was “concerned” by the guidance.

The new sentencing guidance puts a greater emphasis on the need for pre-sentence reports for judges.

Pre-sentence reports give judges details on the offender’s background, motives and personal life before sentencing – then recommend a punishment and what would work best for rehabilitation.

But over recent years their use has decreased.

Magistrates and judges will be advised to get a pre-sentence report before handing out punishment for someone of an ethnic or faith minority – alongside other groups such as young adults, abuse survivors and pregnant women.

These factors are not an exhaustive list, the council said. A pre-sentence report can still be necessary if an individual does not fall into one of these cohorts.

The previous Conservative government was consulted on the changes when the council was considering reforms between November 2023 and February 2024.

Asked why the government had not objected to the changes then, Jenrick said “there was no direction or requirement by government” for the council to investigate the issue.

He added that the justice secretary at the time, Alex Chalk, had labelled the idea “ridiculous and patronising”.

Mark Daly from the Prison Reform Trust said there were “very good reasons” for the changes.

Speaking to Radio 4’s The World Tonight, he said it was “simply reflecting the fact that if we look at outcomes from sentencing, there is disproportionality”.

“So we know already that if you are from a minority ethnic background you are more likely to receive a custodial sentence for an equivalent offence, particularly for certain types of offences such as drug offences, than you would if you were white.”