Further guidance could be provided for courts to better deal with ethnic disparities in sentencing, according to an expert sentencing advisory group. In a new report published by the Sentencing Academy, Julian V. Roberts and Andrew Ashworth analysed the Sentencing Council’s guidance on how sentencing laws and information contribute to ethnic differences in outcomes.
According to the 2017 Lammy Review into race and the criminal justice system, Black, Asian and other ethnic minority men were greater than 50% more likely than White men to plead ‘not guilty’ at Crown Court. According to 2019 data, 37% of BAME defendants who were tried in the Crown Court pleaded ‘not guilty’ compared with 27% of White defendants meaning BAME defendants were 35% more likely than White defendants to plead ‘not guilty’.
Roberts and Ashworth suggested several steps which could be taken to prevent the exacerbation of ethnic differences through sentencing. For instance, they pointed out that ethnic minority defendants are less likely to plead guilty than other profiles of defendant and suggested that sentencers may inquire into reasons for a late guilty plea for all defendants. Another example is the mitigating factor of remorse, which Roberts and Ashworth state could be tackled by sentencers not penalising people for failing to show it in ‘traditional manner’. They say that this demeanour could be due to factors such as a lack of understanding of the system, and a belief that they are or will be discriminated against and that this is more likely to impact young defendants from a Black and Minority Ethnic Background.
At macro level, the report suggested research priorities that the Sentencing Council could pursue. This includes conducting research into the outcome of sentencing on those from different ethnic backgrounds for more offences and exploring the relationship between ethnicity and the length and requirements of orders, like community penalties. The publication also points out deficiencies in research so far. For instance, it states that ‘very little’ is known about ethnicity-related sentencing differentials in magistrates’ courts, as ‘most studies to date have been restricted to indictable offences in the Crown Court’.
The report acknowledges the Sentencing Council’s current guidance on the impact of sentencing and on those from different ethnic backgrounds. All Sentencing Council guidelines refer to the Equal Treatment Bench Book, which serves the purpose of ‘reminding sentencers of the need to consider equal treatment, and directing them to the information they need to help them to do this’. The material refers to ‘two key 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’.
Roberts and Ashworth contrast this provision of information with ‘specific guidance such as that contained in the guideline regarding sentence reductions for a guilty plea’. Nevertheless, they emphasise that sentencers should not take it upon themselves to ‘correct’ biases that may have appeared at earlier stages of the criminal process. The suggestion is that they should focus on ensuring that ‘all offenders receive the same degree of individualised sentencing’, as this will help to ‘avoid exacerbating the problem of racial disproportionality’.