Did the U.K. Propose a ‘Two-Tier Justice System’ for Criminal Sentencing?

A proposed sentencing guideline in England and Wales has Brits and social media users roiling over a policy they say would introduce a two-tier justice system that unfairly discriminates against white men. 

The Sentencing Council for England and Wales—established by the U.K. Parliament in 2010 to promote transparency and consistency in sentencing and made up of eight British judges and six experts on criminal law—in early March proposed a “significantly revised” set of guidelines to take effect on April 1. Members in both major U.K. political parties quickly objected to the guidelines’ changes to “pre-assessment reports,” with critics calling the guidance discriminatory because it could bring information about an offender’s gender, ethnicity, and religion into sentencing decisions. As members of Parliament from both parties committed publicly to passing a bill to block parts of the guidelines, the Sentencing Council announced March 31—one day before the new guidelines were to take effect—an indefinite delay on enacting the proposed guidance.

While the United Kingdom is governed by its unitary parliament, the country splits its judiciary into three distinct legal systems. England and Wales share a legal system, while Scotland and Northern Ireland each have their own. 

English and Welsh courts, in cases where a defendant pleads or is found guilty, may request a pre-assessment report that summarizes details of the criminal offense, general background information about the defendant (e.g., prior criminal history, age, educational attainment, etc.), a “risk and needs assessment” of the defendant, and a recommended sentence. These reports are written by an official with England and Wales’ Probation Service after meeting and interviewing the defendant. The reports “provide the court with a greater understanding of the background and the context of the offending behaviour, rather than just the details of the offence,” the U.K. government states on its website. “However, the Judiciary will form an independent view for the most appropriate sentence based on all the evidence they have heard.” 

Pre-assessment reports are not required when a court finds it unnecessary; for example, when the court believes it has enough information regarding the case and defendant to issue a sentence. In its proposed guidelines, the Sentencing Council laid out under what conditions a pre-assessment report “will normally be considered necessary.” Included on this list was whether the defendant is a “female;” part of an ethnic, cultural, or religious minority group identity; or identifies as transgender. 

However, social media users have conflated the guidance over pre-assessment reports with actual sentencing recommendations, falsely claiming that the guidance recommended longer sentences for individuals outside those categories. “Communist Britain about to fully officially & formally embrace a Two Tier Justice System where White British Christian Men are prosecuted by the full force of the law vs any other group of people,” tweeted one X user, a self-described “conspiracy realist/coincidence analyzer” with more than 900,000 followers on the platform. Similarly, another X account—“Radio Europe,” a European-based right-wing news aggregator that has no connection to Radio Free Europe/Radio Liberty—tweeted, “The British Sentencing Council has decided that starting Tuesday, white men will be sentenced to longer prison sentences than women and ethnic minorities.” Alex Jones also chimed in on X to repeat the claim, calling it “irregular warfare.”

Christopher Hope—a British journalist with the U.K.-based, right-of-center news network, GB News—said on-air on March 28, “White men are going to be treated a lot tougher by judges from Tuesday, compared to other groups.” GB News’ X account posted a segment of its show, including both Hope’s remarks and separate comments made by U.K. Prime Minister Keir Starmer, who does not support the proposed guidelines.

In its caption, GB News quoted Hope’s remark with no attribution. The same tweet mentioned Starmer and quoted a portion of the comment he himself gave the network. Many prominent users attributed Hope’s remark to Starmer. GOP Sen. Mike Lee of Utah, Dilbert comic creator Scott Adams, Blaze Media television show writer and producer Kyle Becker, and Voz Media, a right-wing, Spanish-language news outlet based in Texas, all incorrectly claimed that Starmer himself had said white men would face more intense scrutiny under the guidance. 

The guidance does not state that white men will or should face tougher sentencing. Rather, it states specific instances where a pre-assessment report is necessary. Other provisions on the list were found to be rather uncontroversial—for example, if the defendant is a first-time offender, between the ages of 18 and 25 years old, is pregnant or postnatal, the primary caretaker for their children or other dependant relatives, has a chronic medical or mental health condition, or suffers from an addiction. Moreover, the guidelines state a report might be necessary if the court knows or suspects that the defendant is a victim of 1) “domestic abuse, physical or sexual abuse, violent or threatening behaviour, coercive or controlling behaviour, economic, psychological, emotional or any other abuse,” 2) “modern slavery or trafficking, or 3) “coercion, grooming, intimidation or exploitation.”

Still, a judge can use information cited in the pre-assessment report in considering the length of a sentence. “The aim of the revised guideline is to make sure the courts have the most comprehensive information available about the circumstances of the offender and the offence, and the range of possible sentencing options,” the Sentencing Council wrote in a March 5 news release, “so that they can impose a tailored sentence that is the most suitable and appropriate for the offender and offence before them.” 

The proposed guidance does not explicitly stipulate that lesser sentences should be handed down based on gender, ethnic origin, or religious identity. However, because the necessity of pre-assessment reports would be determined, at least partly, on the basis of gender, race, and religion, the proposed guidance could certainly lead to differential treatment in sentencing. As the proposed guidance itself states, pre-assessment reports include “any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.”

“I have been clear in my view that these guidelines represent differential treatment, under which someone’s outcomes may be influenced by their race, culture or religion,” tweeted U.K. Lord Chancellor and Secretary of State for Justice Shabana Mahmood, a Labour Party member. A week earlier on March 20, Mahmood requested that the Sentencing Council revise its proposed guidelines to remove the “full list of cohorts for whom a pre-sentence report will ‘normally be considered necessary.’” But the Sentencing Council—an independent body not directly answerable to the U.K.’s lord chancellor and secretary of state of justice—declined Mahmood’s request on March 28. However, as U.K. parliamentary members prepped legislation to block the proposed guidance, the Sentencing Council reversed course. “The [Sentencing Council] Chairman [Lord Justice William Davis] indicated that the Council would not introduce a guideline when there is a draft Bill due for imminent introduction that would make it unlawful,” a March 31 press release from the judicial body stated. “On that basis, the Council, an independent statutory body, has chosen to delay the in force date of the guideline pending such legislation taking effect.”

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