UK Judges told they should consider previous racial bias before sentencing

December 9: Judges and magistrates in the UK are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders.

The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences, the Guardian reported.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim.

But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”

Explaining the reminders, the sentencing council said that while carrying out analysis for the guidelines its research revealed “disparities in sentence outcomes for some firearms offences based on ethnicity”.

The reminders, the council said, are an attempt to address that by “drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part of the sentencing process”.

Similar reminders of ethnic inequality may be added to future sentencing council guidelines for other offences.

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.

Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.

There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

Mrs Justice Maura McGowan, a member of the sentencing council, said: “Firearms have the potential to cause terrible harm – from severe injury or death to intense fear – and the courts rightly take these offences extremely seriously. We know that judges and magistrates will welcome guidelines in this difficult area of sentencing.

The new guidelines cover a range of offending relating to the possession, manufacturing and transferring of firearms and aim to provide a structured framework for courts to ensure a consistent approach to sentencing that meets the seriousness of the offending.”

https://www.theguardian.com/law/2020/dec/09/judges-told-they-should-consider-previous-racial-bias-before-sentencing