BSWN recognises that the current state of justice within the United Kingdom remains systemically unjust for those of Black and Racially Minoritised backgrounds. Indeed, studies show that 56% of legal professionals have witnessed a judge act in a racially biased manner. Moreover, 52% have witnessed judicial decisions being influenced by discrimination – most frequently towards Black and Asian lawyers, witnesses, and defendants (Institute of Race Relations, 2024).
The New Guidance
The newest guidance on sentencing proposed by the Sentencing Council hoped to push back against these existing disparities based on the protected characteristics of those subject to criminal court decision-making. This particular guideline steers courts to request and consider a pre-sentencing report before reaching a final opinion for a sentence. In essence, communities of people listed below will have a pre-sentencing report issued to the court for the court’s consideration of personal circumstances, nature and causes of behaviour, and other factors that may impact the suitability of different sentences. These groups include, but are not limited to:
Ethnic minority, cultural minority, or faith-based minority communities.
Pregnant people.
Young adults.
Sole/primary carers for dependent relatives.
Those with serious medical, mental, and physical ill health.
Disabled people.
Survivors of abuse (sexual, physical, domestic, economic, etc).
You should note that this is not a complete list, with courts having the choice to request and consider a pre-sentencing report based on an individual-by-individual basis. It should also be noted that these characteristics can, and often do, intersect with each other. This is particularly acute for people such as Black women and racially minoritised LGBTQ+ people who are uniquely impacted by prejudices present in the judicial system.
What’s the Problem?
From BSWN’s viewpoint, this is a welcome addition to the justice system of England & Wales, with people from disadvantaged backgrounds (globally) being subject to what is called the ‘social determinants of justice’ that can seriously impact one’s life situation and thus one’s likelihood in interacting with the criminal justice system (McCausland and Baldry, 2023). But recently, the Government’s Justice Secretary, Shabana Mahmood, believes that such guidelines will provide “the appearance of differential treatment before the law…” (BBC, 2025). In line with Secretary Mahmood’s perspective, the Government has vocalised an intent to introduce legislation through Parliament that will effectively override the newest guidance to “surgically remove” sections that they find contentious owing to the new guidance supposedly giving “the impression of an unfair system” – as stated by Labour peer Lord Falconer (BBC, 2025). Due to this criticisms, the Sentencing Council has decided to push back the implementation of the new guidelines.
Existing Differential Treatment before the Law
On the contrary to what Lord Falconer said, statistics show that differential treatment before the law is already embedded within the UK’s justice system. In 2018, the UK Government revealed that Asian and Black offenders were given the longest custodial sentences on average (Gov, 2018). Moreover, the average sentence for Black offenders convicted of offences of violence against the person were almost twice as long as for White offenders (39 months versus 21 months). But the differential treatment of Black and Racially Minoritised individuals before the law encroaches even before they step foot into the courtroom.
Within the city of Bristol, Black people were subjected to a form of stop-and-search (‘full strip search’) at a rate 25 timesmore frequently than White people according to The Cable’s report (The Cable, 2024). Utilising Home Office datasets alone, Black people in Avon & Somerset were 5.8 times more likely to be subject to stop-and-search than White people, a comparatively conservative estimate (Bristol Live, 2021). This is despite the fact that Black people are only arrested at a slightly higher rate after a stop-and-search is issued (Bristol Live, 2021).
The Importance of Lived Circumstances and the Social Causes of Crime
With the existence of racial discrimination within the criminal justice system being made apparent through several avenues of data and statistics, the Sentencing Council’s newest guidelines are a welcome addition to the ongoing work of reducing racial discrimination. On the same point, it is of great disappointment that the current Government has sought to reverse these guidelines by way of a legislation that would make such guidelines illegal. Dr Daniel Alge astutely identifies that such pre-sentencing reports will only seek to make the law ‘fairer’ if one rightfully acknowledges that Black and Racially Minoritised offenders disproportionately are overrepresented within the United Kingdom’s prison population (Alge, 2025).
Such guidelines will ensure that judges are armed with as much relevant information as possible, enabling them to make the most informed decisions predicated on the personal circumstances that have driven an offender to commit a crime. Indeed, there are several negative socio-economic conditions that can drive criminal behaviour – some of which Black and Racially Minoritised or unfortunately subject to at a higher rate than White communities.
Economic Conditions – Tim Newburn identifies that strong economic deprivation (as well as strong economic affluence) can lead to increased crimes due to higher financial strain. Trusts for London identifies that Black and Racially Minoritised groups are more likely to experience poverty, at 34%, than White people, at 17%.
Social Inequality – Newburn also finds that perceived inequities can lead to resentment amongst communities at the receiving end of discriminatory treatment. The Institute of Race Relations cites a 2022 survey that shows greater perceived inequitable treatment by police amongst racially minoritised groups (49%) than those identified as White (64%).
Systemic Disadvantages and Patterns of Victimization – Astutely, Newburn finds that several other factors such as limited access to education, employment opportunities, and social services contribute to one’s likelihood in engaging with the criminal justice system. Certainly within the South West, Black children are subject to exclusions from school–and thereby proper education– at rates at least three times higher than White students. Moreover, The Health Foundation finds that Black and Racially Minoriotised groups are also more likely to find themselves in insecure and low-paying jobs than White peers (The Health Foundation, 2024).
In reality, these types of reports are not new to judicial systems. Scotland’s legal system utilises ‘Social Enquiry Reports’ which have enabled court sheriffs to contextualise offences and engage with narratives constructed by structural disadvantages that disproportionately affect marginalised groups (Tata et al, 2007).
Moving Forward
Equipped with both statistical data as well as academic and governmental research on the existing inequities of justice faced by Black and Racially Minoritised communities in the UK, it is more than clear that differential treatment before the law is alive within our justice system. Newburn is correct in stating that crime cannot be attributed solely as an individualistic choice, but must also be seen within its wider social and economic contexts that broadly define the circumstances in which an individual finds themselves in. BSWN greatly agrees with this assessment, alongside Newburn’s recommendation that social policies–such as the one attempted to be proposed by the Sentencing Council–should be aimed at reducing social inequalities and providing appropriate avenues towards better informed decision-making based on more complete and comprehensive information.
Moving forward, BSWN has become a signatory to an Open Letter written by the Alliance for Racial Justice (and led by the organisation Friends, Families, and Travellers) calling for the government to reconsider their proposal. We encourage fellow civil society organisations, legal practitioners, and community leaders to continue advocating for this position which allows for courts to begin engaging with narratives of structural injustice.
Cited Sources
https://eprints.lse.ac.uk/68133/1/Newburn_Social%20Disadvantage%20and%20Crime.pdf