The body advising judges on criminal sentences has hit back at the justice secretary’s call for it to scrap new guidance on sentencing offenders from ethnic monitories.
The Sentencing Council said ministers from both major parties or their representatives had known about the plans since 2022 and did not object.
It comes after Justice Secretary Shabana Mahmood last week wrote to the council urging it to rethink guidance directing judges to review the lives of offenders from ethnic minority and other backgrounds before deciding on a punishment.
Opposition politicians had claimed the changes amounted to a “two-tier justice” system.
Lord Justice William Davis, the chairman of the council, said that Mahmood’s officials were fully briefed on the plans that had been three years in the making.
He said that ministers could not “dictate” sentencing and he would have to take legal advice on Mahmood’s powers over the council’s work.
This raises the bizarre possibility that the body advising judges on how to judge might decide to go to court for a ruling on whether the minister overseeing justice has any power to tell judges what to do.
The row was triggered after the Sentencing Council, which advises judges and magistrates on the complexities of prison terms and community punishments, issued new guidance for England and Wales on when a court should order a pre-sentence report into an offender’s life.
These reports do not tie the hands of judges but they often provide the court with a detailed insight into why an individual fell into crime, their risk of reoffending and the chances for rehabilitation outside of jail.
The new guidelines told judges to order a pre-sentence report if the offender is from a minority background, facing the possibility of jail for the first time, a woman or pregnant.
It also urged them to always consider a report in a wider range of circumstances, including where an offender has an addiction, is transgender, or has learning difficulties.
Writing to the Sentencing Council last week, Mahmood said she objected to the new guideline, saying: “As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law.”
That came after the shadow justice secretary Robert Jenrick described the plan as “two-tier” justice that would disadvantage white offenders.
But in a six-page letter to Mahmood, the Sentencing Council chair said the new guidance aimed to correct disparities and had been drawn up after long discussions over how particular types of offenders were being treated differently to others.
Lord Justice Davis said that people from ethnic minorities were receiving longer sentences and the aim was to ensure that punishments were more consistent, regardless of background.
He said Conservative and Labour ministers, as well as their their officials, had at least 15 opportunities over three years to object to the plan
“I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders,” he said. “Plainly that suggestion is completely wrong.”
The senior judge said ministerial representative had been at all 15 meetings where the changes was discussed between July 2022 and January 2025.
The public consultation on the plans had set out the proposals and Conservative ministers, then in power, had welcomed the “fuller guidance”.
“No concern was expressed about the term now under debate,” said Lord Justice Davis.
Only eight of 150 responses to the public consultation had objected to the explicit reference to ethnic minorities.
The judge said: “At no stage did the Lord Chancellor’s representative express any concern or reservation about the term now under debate.
“The walk-through of the guideline with officials from the Ministry of Justice took place on Monday 3 March. Again no concern was expressed about the relevant term.”
While ministers have an exceptional power to intervene in the Sentencing Council’s decisions, this has never been used in a situation where new guidance had been published and the government had already been extensively consulted and had not objected.
“I shall have to take legal advice as to whether the power… applies in those circumstances,” said the judge.
He continued: “I do not accept the premise of your objection to the relevant part of the list of cohorts for whom a pre-sentence report will normally be considered necessary.
“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.”
