May 23rd, 2022

Our new paper by Professor Julian V. Roberts and Professor Andrew Ashworth examines the guidance currently provided by the Sentencing Council in respect of ethnic disparities in sentence outcomes and considers what this guidance may require sentencers to do in practice.

Read the full report here:

Executive Summary:

Sentencing offenders from ethnic and racial minorities has emerged as a key issue around the world. At sentencing, it is important to determine whether offenders from different ethnic and racial backgrounds receive different sentencing outcomes – and if so, why. Sentencing laws and guidelines may contribute, directly or indirectly, to ethnic differences in sentencing outcomes.

This report examines the current guidance provided with respect to this issue in England and Wales.

The Sentencing Council has provided a direction to courts regarding BAME defendants which has been inserted into several of the Council’s recent guidelines. All Council guidelines refer to the Equal Treatment Bench Book (ETBB). In its Consultation document on the Drug Offences Draft Guidelines, the Council noted that ‘by putting this information before sentencers at the beginning of each guideline, we are reminding sentencers of the need to consider equal treatment, and directing them to the information they need to help them do this’ (Sentencing Council, 2020a, pp. 45-46).

It is important to understand the nature of the information which Council is bringing to courts’ attention. In some other jurisdictions, some courts have recognised diminished culpability claims made on behalf of racial or minority ethnic offenders at sentencing. Courts have used the offender’s social context to justify what may be termed ‘diminished culpability’ mitigation.

The material in the ETBB does not address issues of systemic discrimination, social disadvantage, or diminished culpability. Rather, the paragraphs in the ETBB document two key research findings: (i) the over-representation of BAME people at various stages of the criminal process, and (ii) the lower levels of confidence and trust in criminal justice found in BAME communities. However, this material consists of background information for sentencers rather than specific guidance such as that contained in the guideline regarding sentence reductions for a guilty plea. A key question for sentencers is the following: How should the sentencing exercise change to reflect this direction from Council?

In order to assess the relevance and weight of sentencing factors, courts need to ensure that all relevant information about the offender and the offence is available at the time of sentencing. Sentencers should be aware that certain circumstances may be more commonly present in the social backgrounds of BAME defendants, and this is what the relevant paragraphs of the ETBB address. The Council’s guidance encourages courts to consider the sentencing process in the context of the defendant’s social background, and to avoid a mechanical application of the guidelines which assumes that all offenders share a common set of circumstances.

One practical consequence is that courts may find it necessary to take additional steps in order to ensure that this information to be brought to court. The Pre-Sentence Report (PSR) is the primary means of providing information about the offender.

If sentencers have a comprehensive understanding of the offender’s background, relevant mitigating factors will be more consistently (and fairly) applied. Some sentencing factors may affect BAME offenders differentially, and BAME defendants may be disadvantaged with respect to some sources of mitigation. Courts should scrutinise all relevant mitigating and aggravating factors to determine whether in these cases any have particular relevance to the case, to ensure that the factors are not overlooked, or under or over-weighted at sentencing, and that they are applied consistently across all cases. This report examines several such factors in more detail.

One of the mitigating factors in the guideline for the offence of carrying a weapon in a public place is the following: Offender co-operated with investigation and/or made early admissions.Courts should ensure that they fully understand the reasons for a failure to co-operate or make early admissions and also to avoid giving excessive weight to this factor in a way that may exacerbate differences between offenders of different ethnic backgrounds. If BAME defendants hold more negative views of the criminal justice system or professionals working within it, this may explain why they are less co-operative at the pre-trial stage – and less likely to benefit from this ground of mitigation as a result. Members of ethnic minorities may be reluctant to co-operate with the police, perhaps because they, or people they know, have suffered discrimination at the hands of the police or other criminal justice agents. Similarly, they may be more reluctant to make early admissions. Courts should ensure that they fully understand the reasons, in the particular case, for a failure to co-operate or make early admissions.

Research has long demonstrated that ethnic minority defendants are less likely (than other profiles of defendant) to plead guilty. BAME defendants are also acquitted at a higher rate than White defendants. This may account for the lower guilty plea rate of BAME defendants. In 2020, 79% of White offenders pleaded guilty, compared to 66% of Black offenders (Ministry of Justice, 2021b). In addition, it may also be the case that when they do plead guilty, they do so later than other offenders. Having been sensitised to the link between ethnicity and plea, courts should ensure that the appropriate level of reduction is awarded in all cases. This may require an inquiry into reasons for a late plea, in all cases, and not just certain defendants.

Finally, with respect to a third objective of the ETBB, courts need to make a greater effort to explain the sentence to BAME offenders who may have less confidence that they will be treated fairly at sentencing. In light of their life experiences, minority defendants may feel that sentencers are insufficiently aware of their social backgrounds and important sources of mitigation. Some individuals may perceive White defendants to have an advantage in this regard, and it is important for sentencers to address any such perceptions.

It may be useful or even necessary to inquire of the offender whether he or she fully understands the reasons for the sentence being imposed. Sentencers may also need to encourage legal representatives to ensure that the reasons for the sentence are clear to their clients. If possible, written reasons for sentence should be provided to counsel so that they can explain the sentence to their clients and answer any queries. Again, the purpose of the guidance is not to direct courts to apply special consideration for any particular category of offender, but simply to ensure that all understand the reasons for the sentence. This direction is particularly important when the court imposes a sentence of immediate imprisonment.

To summarise, the direction to ensure all necessary information about the offence and the offender is before the court attempts to ensure that courts have the same level of knowledge of the offender prior to sentencing. Seen in this light, the direction to courts regarding BAME defendants and disproportionality is consistent with the Council’s approach to guidelines more generally: the goal is to ensure a consistent application of all relevant circumstances and principles, and not to encourage courts to focus on harmonising outcomes.

The report concludes by identifying research priorities in the area.