The recent introduction of two-tier probation service rules in England and Wales has stirred up significant controversy. The guidelines, developed by the Sentencing Council, have sparked criticism from both sides of the political spectrum and raised concerns about fairness, equality, and the integrity of the justice system. At the heart of the debate is whether these new rules, which prioritise certain groups based on their ethnic, gender, or historical background, will create more problems than they solve.
The guidelines are based on the premise that people from ethnic minorities, women, and transgender individuals are more likely to be remanded in custody, often due to systemic biases or cultural factors. The rule changes direct judges to give extra attention to the pre-sentence reports of individuals from these groups, acknowledging the potential for unfair treatment based on their identities. The goal is to ensure that judges consider factors such as historical oppression or discrimination when making sentencing decisions.
Proponents argue that the new guidelines are an attempt to address long-standing disparities within the justice system, particularly regarding race, gender, and gender identity. The logic is simple: individuals from marginalised groups often face biases in legal proceedings, and giving them extra consideration in probation reports could help mitigate some of these disadvantages.
However, the idea of creating a tiered system of justice based on identity has provoked significant backlash.
Why This Approach Is Problematic
1.Risk of Unintended Discrimination
One of the primary criticisms of the two-tiered system is that it introduces the very kind of discrimination it aims to avoid. By prioritising pre-sentence reports for individuals based on their ethnicity, gender, or history, the system risks creating a two-tier justice process—one for certain "cool" groups and another for everyone else.
Critics, including Shadow Justice Secretary Robert Jenrick, have expressed concerns that these guidelines could inadvertently lead to further disparities, where people from certain backgrounds are treated differently simply because of their identity. This could undermine the fundamental principle of justice: that all individuals should be treated equally before the law, regardless of their background.
2.Overreliance on Identity Politics
Another issue with these guidelines is the emphasis on historical grievances when determining the level of consideration given to certain individuals. The guidelines suggest that judges should take into account events such as slavery, colonialism, or past wars—factors that could have affected the individual's life or family. While acknowledging the long-term effects of historical trauma is important, critics argue that weaving historical and cultural context into individual legal cases introduces a high level of subjectivity into the judicial process.
This emphasis on "identity politics" could open the door to judges making decisions based on personal interpretations of history and culture, leading to inconsistent sentencing and unpredictable outcomes. If judges are expected to factor in these elements, they could end up creating rulings that are not based on the facts of the case but rather on their interpretation of a person's background, potentially leading to bias and injustice.
3.Potential for Inconsistency and Inaccuracy
By incorporating subjective factors such as diversity considerations into pre-sentence reports, the justice system risks introducing new biases. While these factors may be intended to prevent stereotypes, they could result in biased assessments instead. Probation officers and judges may unwittingly rely on stereotypes about what it means to be a member of a specific group, leading to inaccurate or unfair sentencing decisions.
Additionally, these guidelines ask judges to take into account factors that could be irrelevant to an individual's case. For example, how does a judge accurately assess the impact of colonialism on an individual today? The risk here is that personal, and potentially politically charged, interpretations could take precedence over facts or evidence, further complicating the judicial process.
4.Erosion of Trust in the Justice System
If the public perceives that sentencing decisions are being influenced more by a person's identity than by the merits of their case, it could erode trust in the justice system. The fairness of the system is predicated on the belief that all individuals, regardless of race, gender, or other characteristics, should be treated equally before the law. When the justice system starts to treat people differently based on their background, it undermines this foundational principle.
Justice Secretary Shabana Mahmood has raised concerns that these guidelines could create divisions within society, as individuals may feel that some people are receiving preferential treatment over others. Such a perception would further damage public confidence in the fairness of the legal system and its ability to deliver equal justice.
While it may be the case that systemic biases exist within the justice system—particularly for individuals from marginalised communities, the solution is not to create a two-tiered approach that further entrenches divisions. Instead, efforts should be focused on addressing these disparities without undermining the core values of justice and equality.
One potential solution could involve the use of more robust training for probation officers and judges, helping them to recognise and address their own biases without resorting to identity-based guidelines. Additionally, there should be a greater emphasis on data-driven analysis of sentencing practices to ensure that individuals are not unjustly penalised or given preferential treatment based on their identity.
It is also crucial that any reforms to the justice system are transparent and consistent. A system that constantly shifts in response to public opinion or political pressure risks becoming unpredictable and unfair. The justice system must remain impartial, with a focus on the individual case, not the identity of the person involved.
The introduction of two-tiered probation service rules in England and Wales represents a step away from a truly equal and fair justice system. While the intent behind these guidelines—to address systemic biases—may be well-meaning, or woke, the approach is flawed. Instead of fixing the problem, these new rules risk exacerbating existing inequalities by introducing more subjectivity into the judicial process. The true path to justice lies not in treating people differently based on their identity, but in ensuring that all individuals are treated equally, regardless of their background or circumstances.
https://news.starknakedbrief.co.uk/p/so-two-tier-sentencing-bad-but-two
"While the country reeled from the Sentencing Council's attempt to introduce race-based sentencing leniency, something arguably more audacious had already been implemented—and almost no one noticed.
In January, Labour Justice Secretary Shabana Mahmood and her department quietly published new probation service rules that set the stage for two-tier bail procedure.
Under this framework, judges are instructed to "prioritise" cases involving ethnic minorities, women, and trans-identified suspects—on the assumption they face a "disproportionately higher risk" of being remanded in custody.
Barely a ripple came from the press.
It stands in complete contrast to the public backlash that followed the Sentencing Council's now-abandoned proposal to recommend pre-sentence reports (PSRs) based on ethnicity and/or faith.
The new probation guidance goes further than just identifying potential vulnerabilities.
It explicitly calls for judges to consider factors such as "important historical events which may have had a greater impact on those from specific groups and cultures."
That presumably includes events like the slave trade, past wars, and colonialism—historical moments that can apparently cause "trauma" for the descendants of those who experienced them.
The guidance—titled Probation Court Services Policy Framework—also instructs officers to consider "diversity factors" when drafting sentencing reports, ensuring that "no references to diversity issues" are included if they risk stereotyping certain groups.
The Ministry of Justice, Mahmood's department, offered an example: "inappropriately linking people of a particular racial background to gang involvement," making "irrelevant reference to religion or belief," or citing factors like care-leaving status or educational difficulties "without providing relevant context and evidence."
Make no mistake: these are the factors judges and magistrates are being urged to consider when deciding whether to grant bail or keep someone in detention—after arrest, but before a trial has taken place.
The kicker? These rules have been in force since January 6th. Meaning that, white male Brits have been subject to bail guidelines that "positively" discriminate against them since the onset of the year.
What makes this even more perplexing is that Mahmood herself condemned the Sentencing Council's PSR guidance in a formal letter on March 20th.
In that letter, addressed to Council Chair Lord Justice William Davis, she objected to the guidance on two grounds: that the Council had acted without consulting the new government, and that the policy breached the principle of equal treatment before the law.
But buried within her objection was something more revealing.
Mahmood didn't just argue against the content of the guidance—she objected to who had published it. Sentencing policy, she wrote, should be the responsibility of those "accountable to the public... at the ballot box."
In other words: the policy was partly wrong because it didn't come from her or the government.
So because this bail "policy framework" came from her, she's fine with it?
You really couldn't make this stuff up…
When Donald Trump flattened Joe Biden in the 2024 election, many on this side of the Atlantic shrugged.
But for some, it was a wake-up call—a reminder that it often takes prolonged pain, disillusionment, and economic erosion for enough of the population to finally push back.
In Britain, we now seem to living through our own long, bitter version of that pain. For America, it was the last Biden administration.
Under Starmer, Mahmood, and co. we are experiencing a palpable decline in fairness and principle—replaced by lifeless ideology that reward things like identity over character.
And if the electorate is paying attention, 2029 may yet deliver its own shock to Whitehall, like 2024 did to Washington."