“Two-Tier Justice in Plain Sight!”

The Perils of a Two-Tier Justice System: Analysing the Sentencing Council’s New Guidelines

By Jason King

In this op ed I am going to be discussing the recent two-tier and possibly discriminatory guidelines about to be introduced by the Sentencing Council on the 1st April.

In hallowed halls of British justice, the principle of equality before the law has long stood as a cornerstone of our legal system. This foundational tenet, enshrined in the scales held by Lady Justice, ensures that every individual, irrespective of background, stands equal before the law. However, the recent Sentencing Council’s guidelines threaten to tip these scales, ushering in a two-tier justice system that discriminates against certain demographics, notably white working-class males.

Understanding the New Guidelines

The Sentencing Council’s updated guidelines, set to be implemented in April 2025, recommend that courts commission pre-sentence reports (PSRs) for specific groups of offenders. These groups include individuals from ethnic, cultural, or faith minorities; young adults aged 18-25; females; pregnant or post-natal individuals; primary carers for dependents; those identifying as transgender; individuals with addiction issues; those with serious medical conditions or disabilities; and individuals who may have been victims of abuse, modern slavery, or exploitation.

These guidelines are presented as a progressive step towards addressing systemic biases and ensuring that sentencing takes into account the unique circumstances of offenders. However, a deeper examination reveals a concerning exclusion: white working-class males who do not fall into any of the aforementioned categories are effectively barred from the potential benefits of PSRs.

The Rationale Behind These Changes

The Sentencing Council’s changes are driven by two primary factors: the prison overcrowding crisis and the legacy of the David Lammy Review.

Easing Prison Overcrowding Through Community Sentences

The UK’s prison system is at breaking point, with record levels of overcrowding forcing the government to release offenders early. To ease this burden, courts are increasingly encouraged to issue community sentences instead of custodial sentences where possible.

However, while increased use of PSRs may be necessary to reduce the numbers of people being given custodial sentences, innovative solutions such as virtual prison sentences could offer a more balanced approach to the prison capacity crisis, but have now been sidelined by the Labour government.

The Influence of the David Lammy Review and Identity-Based Sentencing

The second key influence behind these guidelines is the 2017 Lammy Review, officially titled The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System.

This report concluded that BAME individuals faced “overt discrimination” and systemic bias, and argued that judges often failed to understand the socio-economic and cultural contexts of minority defendants.

The Lammy Review’s conclusions have strongly influenced subsequent judicial policies, including the Equal Treatment Bench Book (2018), which promoted identity-based sentencing considerations. The Sentencing Council’s latest guidelines are a continuation of this trend, prioritising certain demographics based on past concerns over racial disparities—yet in doing so, they introduce new disparities of their own, and this decision was certainly very influenced by

The Implications of Selective PSRs

Pre-sentence reports (PSRs) are instrumental in providing judges and magistrates with insights into an offender’s background, personal circumstances, and the context of their offense. This information can influence sentencing decisions, potentially leading to community orders or suspended sentences instead of custodial sentences.

By limiting PSR recommendations to specific groups, the Sentencing Council has effectively created a hierarchy of offenders—where certain individuals receive leniency based on characteristics unrelated to the crime itself. This undermines the principle of universal justice and suggests that some offenders are more deserving of judicial consideration than others.

A Blatant Form of Discrimination

The exclusion of white working-class males from the recommended PSR considerations is not just an oversight; it is a blatant form of discrimination. By categorically denying this group the same opportunities for individualized sentencing considerations, the guidelines perpetuate a systemwhere justice is no longer blind, but is instead peering through a lens of bias.

As legal scholar A.V. Dicey articulated in Introduction to the Study of the Law of the Constitution, the rule of law requires “the equal subjection of all classes to the ordinary law of the land.” Yet the new guidelines contradict this principle, introducing preferential treatment based on identity rather than the nature of the offense.

Governmental Opposition and Legal Ramifications

The guidelines have not gone unchallenged. Justice Secretary Shabana Mahmood has condemned the proposals, stating:

“The Sentencing Council is entirely independent. Today’s updated guidelines do not represent my views or the views of this government. […] As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind. There will never be a two-tier sentencing approach under my watch.”

Her statement signals a potential legal battle, with Shadow Justice Secretary Robert Jenrickeven threatening a judicial review if the guidelines proceed. If implemented, these policies could face significant legal challenges over their inherent discrimination and potential violation of the Equality Act 2010.

The Slippery Slope of Identity-Based Sentencing

The introduction of identity-based considerations in sentencing sets a dangerous precedent. While the intention may be to correct past injustices, the execution of such policies must be handled with utmost caution to avoid reverse discrimination.

Legal philosopher H.L.A. Hart, in The Concept of Law, emphasized the importance of treating like cases alike. Yet by introducing extraneous factors such as ethnicity and gender into sentencing decisions, the Sentencing Council is undermining the very legitimacy of the legal system.

Conclusion: Upholding True Equality Before the Law

The Sentencing Council’s new guidelines represent a deeply flawed attempt at achieving justice reform. While addressing prison overcrowding and racial disparities is important, the method chosen—selective leniency for certain groups—risks entrenching new inequalities rather than resolving old ones.

Justice must be blind, and sentencing decisions should be based on the crime, not the identity of the offender. If the UK’s legal system is to maintain public confidence, it must reject policies that divide offenders into favoured and disfavoured groups.

At its core, the principle of universal justice is not about selectively correcting past injustices—it is about ensuring that the laws of the land apply equally to all. If the Sentencing Council’s guidelines go ahead unchallenged, they risk eroding the very foundation of the British justice system.

Well, that’s all for now. But until our next article, please stay tuned, stay informed, but most of all stay safe, and I’ll see you then.

Jason King

Editor

City-Desk VPN Birmingham

Twitter (X) @JasonKingNews

Jasonkingnews@gmail.com