Prison Justice Invoice: sentencing equalities observation

Introduction

1. Building on action the government has already taken, the sentencing measures within the bill aim to protect the public from the most serious offenders, including those who prey on vulnerable people, through statutory aggravating factors which will capture grooming behaviour, including those involved with grooming gangs, or those who lash out and murder their former partner at the end of a relationship.

2. To ensure victims see justice done, the bill will clearly set out a mechanism for dealing with and penalties for offenders who refuse to attend their sentencing hearing, ensuring they hear society’s condemnation and the impact of their crimes on their victims.

Grooming behaviour

Policy summary

3. The commitment to introduce a new statutory aggravating factor was made by the Prime Minister in April 2023 as part of government plans to clamp down on grooming gangs. This legislation will require the courts to impose a heavier sentence when sentencing for specified sexual offences committed against those under 18 which involve grooming, going further than existing sentencing guidelines. This will include (but is not limited to) individuals involved in grooming gangs.

4. This will capture offenders whose offending is facilitated by, or involved, the grooming of a person under 18. The grooming may be undertaken by the offender or a third party and committed against the victim of the underlying offence or a third-party. It will apply to grooming in connection with specified sexual offences. This means grooming that is conducted with a view to committing a sexual offence, however the grooming conduct itself need not be sexual in nature.

5. An aggravating factor makes an offence more serious and must be considered by the court when deciding the length of the sentence.

Equality duties

6. Section 149 of the Equality Act 2010 places a duty on Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010
• advance equality of opportunity between different groups (those who share a relevant protected characteristic and those who do not); and
• foster good relations between different groups (those who share a relevant protected characteristic and those who do not)

7. There are nine “protected characteristics” under the Equality Act 2020 – namely race, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity. This statement considers the potential effects of this measure on the protected characteristics for which we have relevant data: race, sex and age.

8. Our assessment is that all of these provisions are not directly discriminatory within the meaning of the Equality Act 2010. They do not treat people less favourably because of their protected characteristics and they apply in the same way to all individuals who are in scope, regardless of their protected characteristics.

Evidence and analysis – context

9. In considering the impacts of the measure, we have analysed the latest available Criminal Justice statistics collected by the Ministry of Justice (year ending December 2022) on convictions for sexual offences relating to the protected characteristics of race, sex and age. Whilst not included in the sexual offences data group, where possible we have also included statistics on specific offences relating to indecent images of children ^{[footnote 1]} included in the measure. Where relevant, data on the general population and overall sentenced population are provided for comparison.

10. This measure aggravates offences only where the victim is under 18 and where the offending if facilitated by, or involved, grooming. However, we have not been able to consider its potential effects on the protected characteristics of this specific cohort of offenders as it is not possible to identify all sexual offences with a child victim, as age is not always specified in the offence, and we do not hold data on the prevalence of grooming in relation to sexual offences.

Eliminating unlawful discrimination, harassment, etc

Direct discrimination

11. We assess the measure is not directly discriminatory within the meaning of the Equality Act. These measures do not treat people less favourably because of their protected characteristics and they apply in the same way to all individuals who are in scope, regardless of their protected characteristics.

Indirect discrimination

Sex

12. Men are more likely to be impacted by this measure as they are overrepresented amongst sentences for sexual offences. In 2022, men accounted for 98% of sentences for a sexual offence and 99% of sentences for specified IIOCs, in comparison to 78% of those sentenced overall. ^{[footnote 2]} Men and boys make up 49% of the population of England and Wales. ^{[footnote 3]}

13. By virtue of the overrepresentation of men in the cohort of offenders, we acknowledge that this measure is more likely to affect this group. We do not, however, consider that this overrepresentation will likely result in any particular disadvantage. Our assessment is that this measure is a proportionate means of achieving the legitimate policy aim of requiring courts to consider grooming when sentencing for specified sexual offences committed against those under 18.

Age

14. Overall, offenders aged 21 – 49 years old are likely to be disproportionally impacted by this measure. Offenders aged 30 – 49 are overrepresented within those sentenced for sexual offences (43%) and offenders aged 21 – 39 are overrepresented within those sentenced for specific IIOC offences (43%).  26% and 29% of the general population fall into the 30 – 49 and 18 – 39 age brackets respectively. ^{[footnote 4]}

15. By virtue of the overrepresentation of those aged 21 – 49 years in the cohort of offender to which this measure will apply, we acknowledge that this measure is more likely to affect this age range. We do not, however, consider that this overrepresentation will likely result in any particular disadvantage. Our assessment is that this measure is a proportionate means of achieving the legitimate policy aim of requiring courts to consider grooming when sentencing for specified sexual offences committed against those under 18.

Race

16. Based on the data available, amongst those sentenced for sexual offences (not including specified indecent images of children offences (IIOCs) no particular ethnic group is overrepresented and the measure will therefore not result in disproportionate impacts on this basis. In 2022, where ethnicity is stated, 82% of those sentenced for a sexual offence were of White ethnicity, 8% were of Asian ethnicity, 7% were Black ethnicity, 2% were of Mixed and 1% of Other ethnicities. ^{[footnote 5]} In England and Wales, 82% of the general population are of White ethnicity, 9% are of Asian ethnicity, 4% are of Black ethnicity, 3% are of Mixed and 2% of Other ethnicities. ^{[footnote 6]}

17. The most common sentencing outcome across all ethnic groups for sexual offences (not including specified IIOCs) is immediate custody.  However, where the measure is applied and immediate custody is imposed, offenders from certain ethnic groups may spend longer in custody due to differences in average custodial sentence length (ASCL). In 2022, where ethnicity is known, White offenders were sentenced to an ASCL of 60 months, Asian offenders to 62 months, Black offenders to 63 months, and those of Mixed or Other ethnicities to 58 and 66 months respectively. ^{[footnote 7]} This trend has fluctuated across recent years, with those of Mixed ethnicities having the highest average custodial sentence length in 2021 and those of Black ethnicity in 2020.

18. For the specified IIOCs, there is a small overrepresentation of offenders of White ethnicity within those sentenced. Where ethnicity is stated, 90% were of White ethnicity, 5% were of Asian ethnicity, 2% were of Black ethnicity, 2% were of Mixed and 1% of Other ethnicities.

19. There are also differences between ethnic groups in the proportion of offenders sentenced to immediate custody and average sentence length where immediate custody is imposed, in 2022, 21% of those sentenced who were of White ethnicity, 13% of those of Asian ethnicity, 17% of those of Black ethnicity 31% of Mixed and 27% of Other ethnicities received immediate custodial sentences. The ASCL was 18 months for those of White ethnicity, 21 months for Asian ethnicity, 16 months for Black ethnicity and 19 months for Mixed and 17 months for Other ethnicities.

20. We acknowledge that, based on 1. the small differences identified in ASCL between ethnic groups for those sentenced for both sexual offences and specified IIOCs and 2. the small overrepresentation of White offenders amongst those sentenced for specified IIOCs, this measure is more likely to impact certain ethnic groups. However, we consider it unlikely that any disproportionate impact will be substantial. Our assessment is that this measure is a proportionate means of achieving the legitimate policy aim of requiring courts to consider grooming when sentencing for specified sexual offences committed against those under 18.

Advancing equality of opportunity between different groups

21. The measure is likely to advance opportunities for children and young people enabling greater protections through the strengthening of sentences for those who commit sexual offences against those under 18 involving grooming.

Fostering good relations

22. We do not consider that these proposals would have any significant impact on the achievement of this objective.

Murder: end of a relationship

Policy summary

23. This measure implements a recommendation made in the independent Domestic Homicide Sentencing Review (the ‘Review’) undertaken by Clare Wade KC. The Review was published on 17 March 2023, accompanied by an interim response from the government. The government published its full response on 20 July 2023.

24. The Review made 17 recommendations for reform. The Criminal Justice Bill implements recommendation 6: to make murder which takes place at the end of a relationship, or when the victim has expressed the desire to leave a relationship, a statutory aggravating factor in paragraph 9 of Schedule 21 to the Sentencing Act 2020.

25. Schedule 21 sets out the principles which the court must have regard to in the determination of the minimum term in relation to the mandatory life sentence for murder. It contains a range of starting points for determination of the minimum term, and the particular circumstances of a murder will determine which of these starting points apply to a particular case. After identifying the starting point, the court will consider relevant aggravating and mitigating factors. The minimum term imposed can vary significantly upwards or downwards from the initial starting point, depending on the aggravating and mitigating factors in each case. Paragraphs 9 and 10 of Schedule 21 contain non-exhaustive lists of statutory aggravating and mitigating factors that may be relevant to the offence of murder.

26. This addition to the statutory aggravating factors in Schedule 21 will ensure that domestic murders and the particular and wider harms that arise in these cases will be given specialist consideration in the framework.

Evidence and analysis – context

27. The Terms of Reference for the Review provided for the examination of cases of domestic homicide (prosecuted as either murder or manslaughter) where an individual has caused the death of an intimate partner or former intimate partner. Before the appointment of an independent reviewer, an Initial Case Review was undertaken.

28. In considering the potential effect of the aggravating factor being introduced in the Criminal Justice Bill on the protected characteristics, we have analysed the relevant available data from the 120 cases from the Initial Case Review (‘the case sample’) where there was a conviction of murder or manslaughter. This data relates to the protected characteristics of race, sex and age (see Appendix A in the government’s response to the Review).1 Where relevant, data on the general population, prison population and sentencing are provided for comparison.

29. Additionally, within the case sample, we have identified a subset of 36 murder cases likely to be impacted by the aggravating factor.^{[footnote 8]} This is because the particular circumstances of these cases have relevance to the aggravating factor. We have stated where this subset may be affected differently, in comparison to the potential effect of a change which would apply to the whole sample of 120 cases.

30. This analysis is subjective in nature, relying upon an evaluation of the sentencing remarks. It is not possible to determine the specific adjustment that may be made for individual aggravating or mitigating factors, and therefore, how sentences will be impacted and the consequential outcomes on those with particular protected characteristics. Sentencing depends on the facts of the case, and it is for the court to determine how much weight should be assigned to aggravating or mitigating factors, and the resulting tariff.

Data availability and limitations

31. Details of the case sample data on protected characteristics, including limitations, are set out in Appendix A of the government’s response to the Review. ^{[footnote 9]} 115 of the 120 cases have data on race available. This data is categorised using officer-identified classification and, as such, may not be directly comparable to an individual’s self-identified ethnicity. 115 of the 120 cases have data on the ages of the perpetrator. For the analysis of race and age, cases where data are unavailable have been excluded from the analysis. All 120 cases have data on sex available.

Equality duties: eliminating unlawful discrimination harassment, etc

Direct discrimination

32. Direct discrimination occurs when a policy would result in people being treated less favourably because of a protected characteristic. Our assessment is that the aggravating factor is not directly discriminatory within the meaning of the Equality Act.

33. Application of the proposed change will be dependent on the facts of a case which relate to the seriousness and wider harms of domestic homicides and will apply equally to all offenders regardless of their protected characteristics. We therefore do not consider that the proposal would result in people being treated less favourably directly because they possess any particular protected characteristic.

Indirect discrimination

34. Indirect discrimination occurs when a policy applies equally to all individuals but would put those with a particular protected characteristic at a particular disadvantage compared to those who do not share that characteristic. Our assessment is that the aggravating factor is not indirectly discriminatory within the meaning of the Equality Act.

35. By virtue of the overrepresentation of this group in the cohort of offender to which this change will apply, we acknowledge that the change is more likely to affect male offenders. In general men are overrepresented at most stages throughout the criminal justice system, including in relation to homicide offences. Additionally, all of the 36 specific murder cases likely to be impacted by the proposed change had male perpetrators.

36. We do not, however, consider that this overrepresentation will likely result in any particular disadvantage for male offenders or for any other offenders with particular protected characteristics. Our assessment is that the aggravating factor is a proportionate means of achieving the legitimate policy aim of ensuring that the seriousness of domestic murders and the particular and wider harms that arise in these cases are reflected in the sentencing framework. Overall, therefore, we do not consider that this measure is likely to result in any unlawful indirect discrimination.

Sex

37\ . 99 of the 120 (83%) perpetrators in the case sample were male, and 21 of the 120 (18%) were female ^{[footnote 10]}. In comparison, men make up 49% of the general population,^{[footnote 11]} 96% of the prison population ^{[footnote 12]} and 78% of offenders convicted in 2022. ^{[footnote 13]}

38. For murder, 81 of the 89 (91%) perpetrators in the case sample were male, and 8 (9%) were female. ^{[footnote 14]} Similarly, 94% of convictions for murder in 2022 involved male defendants. ^{[footnote 15]}

39. When considering the 36 specific murder cases likely to be impacted by the aggravating factor, all of the perpetrators were male.

Age

40. The average perpetrator age across all cases in the sample is 43. At the time of the latest census, ^{[footnote 16]} the median age in England and Wales was 40, and more than half (52%) of the sentenced prison population is aged between 30 and 49. ^{[footnote 17]}

41. The range of perpetrator ages in the case sample spans from 17 to 84.

42. When considering the 36 specific murder cases likely to be impacted by the aggravating factor, the age profile is slightly younger, with the average age of perpetrators being 39, primarily due to there being fewer cases with perpetrators over 60. This is also seen in murder convictions more widely. In 2022, 70% of those convicted of murder were aged between 18 and 39, with only 3% aged 60 or over. ^{[footnote 18]}

Sexual orientation

43. Whilst no data is available on the sexual orientation of perpetrators or victims, all 99 cases with male perpetrators had female victims. ^{[footnote 19]} 20 of the 21 cases with female perpetrators had male victims, and the remaining one case had both a female perpetrator and victim. As such, most victims (n=100, 83%) were female.

44. For the 36 specific murder cases likely to be impacted by the aggravating factor, all had male perpetrators and female victims.

Race ^{[footnote 20]}

45. 92 (80% of those with data on ethnicity available) of the perpetrators in the case sample were white or white British, 12 (10%) were Asian or Asian British, 8 (7%) were black or black British, and 3 (3%) were classed as other.

46. People of ethnic minorities make up 27% of the prison population, ^{[footnote 21]} including 12% black or black British, 8% Asian or Asian British, 5% mixed ethnic group. In the general population, 18% belong to an ethnic minority group, ^{[footnote 22]} including 9% Asian, 4% black, 3% mixed and 2% other. In the case sample, ethnic minorities make up 20% of perpetrators. In 2022, 21% of offenders were from an ethnic minority group ^{[footnote 23]} (where ethnicity was recorded).

47. When considering the 36 specific murder cases likely to be impacted by the aggravating factor, there is a difference in ethnicity when compared to the whole case sample: the proportion of ethnic minority perpetrators rises from 20% to 29%. However, this is lower than seen for murder convictions overall. In 2022, 45% of those convicted of murder were from an ethnic minority group. ^{[footnote 24]}

Harassment and victimisation

48. We do not consider there to be a risk of harassment or victimisation within the meaning of the Equality Act as a result of this measure.

Advancing equality of opportunity between different groups

49. The measure is considered likely to advance equality of opportunity for women by enabling greater protection through the strengthening of sentences for domestic homicide cases.

Fostering good relations

50. We do not consider that this measure would have any significant impact on the achievement of this objective.

Attendance at sentencing hearings

Policy summary

51. To ensure victims see justice done, the bill will clearly set out a mechanism for dealing with and penalties for offenders who refuse to attend their sentencing hearing, ensuring they hear society’s condemnation and the impact of their crimes on their victims.

52. There have recently been a number of cases where serious offenders have refused to attend their sentencing hearing. An offender’s refusal to attend their hearing can cause anger and upset for victims and their families who see this as a final insult, and this issue has generated strong public feeling.

53. Currently, an offender has a right to attend their sentencing hearing, but there is no general obligation for them to do so. The government is creating an express power in legislation for judges to order the attendance of certain offenders for Crown Court sentencing hearings, where they consider it to be in the interests of justice. Any adult offender who breaches this court order by refusing to attend without a reasonable excuse will face an additional sanction of up to 24 months’ custody for contempt. A child offender will receive a fine. The measure will apply to all offenders convicted of an offence which carries a maximum penalty of life imprisonment.

54. The new powers will also allow for judges to direct prison authorities to produce adult offenders for these hearings and make clear that authorities may use reasonable force to comply. Young offenders are excluded from the use of force provisions.

55. Taken together, these measures will send a clear message to offenders that they must attend the sentencing hearing where the court requires them to do so, and that there will be consequences if they refuse.

Equality duties

56. Our assessment is that these provisions are not directly discriminatory within the meaning of the Equality Act 2010. They do not treat people less favourably because of their protected characteristics and they apply in the same way to all individuals who are in scope, regardless of their protected characteristics.

57. The provisions punishing certain offenders for non-attendance apply to all offenders convicted of an offence carrying a maximum penalty of life imprisonment. Men are more likely to be convicted of such an offence, and therefore the measure may disproportionately affect them.

58. The provisions provide that reasonable force can be used to produce the offender to court for the purpose of sentencing. Whilst the type and level of force used will be dictated by the risk posed and behaviour demonstrated by the individual being produced for sentencing, the legislation may impact on black and minority ethnicities (BAME) as they are overrepresented in the criminal justice system.

Eliminating unlawful discrimination, harassment, etc

Direct discrimination

59. Direct discrimination occurs when a policy would result in people being treated less favourably because of a protected characteristic. Our assessment is that the attendance at sentencing hearings measures are not directly discriminatory within the meaning of the Equality Act.

60. Application of the proposed change will be at judicial discretion on a case-by-case basis and will apply equally to all offenders regardless of their protected characteristics. We therefore do not consider that the proposal would result in people being treated less favourably directly because they possess any particular protected characteristic.

Indirect discrimination

61. Indirect discrimination occurs when a policy applies equally to all individuals but would put those with a particular protected characteristic at a particular disadvantage compared to those who do not share that characteristic. Our assessment is that the attendance at sentencing hearings measures are not indirectly discriminatory within the meaning of the Equality Act.

Disability

62. In terms of disability, evidence to the UK parliament indicates that people with learning difficulties, learning disabilities and autism are over-represented in the prison estate. The Prison Reform Trust ^{[footnote 25]} estimated that up to 30% of prisoners have a disability or are neuro divergent. This is also true of individuals with diagnosed mental health issues – including depression and schizophrenia. ^{[footnote 26]} Individuals with mental health and/or learning difficulties and/or autism may find that their court experience is more stressful, harder to understand and exacerbates health issues. This may lead to stress avoidant behaviour and (particularly among adults) may heighten the risk of non-attendance. Some of the behaviours associated with this stress may not be obvious or visible to others.

63. It is likely that without sufficient assessment and safeguards individuals with mental health and learning difficulties and those who are neurodivergent may be unduly and disproportionately impacted by the provisions punishing offenders for non-attendance at their sentencing hearing and enabling the use of force to bring offenders to court.

64. Judges will have the discretion to decide whether it is appropriate to order an offender to attend in such cases having taken into account all the circumstances of the case and any health and communication assessments by professionals, or whether it might be possible for an offender to attend court with additional support measures such as video links or support from an intermediary. There will be cases where the physical or mental health of the offender is such that it would not be appropriate or in the interests of justice for the court to make such an order.

65. People with mental health and/or learning difficulties may be more likely to be subject to the use of force to secure their attendance at their sentencing hearing and the type of force used may be greater due to the risk that the individual presents. However, use of force is a case-by-case decision for operational staff taking into account the circumstances of the individual involved. On conclusion of the assessment by the prison authority on the suitability to use force for the purpose of producing an offender at their sentencing hearing, individuals with mental health and/or learning difficulties whose disability makes it disproportionate to use force on them for production will not be subject to force.

Race

66. In terms of race, even if the provisions punishing offenders for non-attendance are applied proportionately to those in scope of the measure, there is a risk that they may disproportionately impact individuals from BAME backgrounds. Adults and children from some black and minority ethnicities (BAME) are over-represented in the criminal justice system and in the prison estate. In 2022, 25% of those sentenced at the Crown Court were from an ethnic minority background (where ethnicity was stated/recorded). ^{[footnote 27]}

67. There is evidence that some BAME communities and individuals have lower levels of trust in the criminal justice system, and this can impact on their engagement with the system. The Lammy Review (2017) found that there were risks of sentencing bias in the Crown Court system:

“offenders convicted of recordable, indictable offences in the Crown Court in 2015, there was an association between ethnicity and being sentenced to prison. Under similar criminal circumstances the odds of imprisonment for offenders from self-reported Black, Asian, and Chinese or other backgrounds were higher than for offenders from self-reported White backgrounds”

“…potential risk in this process: a significant proportion of decisions made within a sentencing judge’s discretion, may result in that discretion being exercised in one direction for BAME defendants (a longer sentence) and in the other direction for White defendants (a shorter sentence).”

68. There is a risk that biases within the system could result in more individuals from BAME backgrounds receiving longer punishments for an offence of contempt of court under these provisions. However, the sentencing framework, maximum penalties and sentencing guidelines apply equally to all offenders. All sentencing courts in England and Wales must follow any sentencing guidelines which are relevant to the offender’s case, unless it is in the interests of justice not to do so (by virtue of section 59 of the Sentencing Code). The court must give reasons when departing from the guidelines.

69. In terms of race, even if the provisions enabling the use of force to ensure a defendant attends their sentencing are applied proportionately to those in scope of the measure, there is a risk that they may disproportionately impact individuals from BAME backgrounds. As outlined above, adults and children from some BAME backgrounds are over-represented in the prison estate. There is also evidence to suggest that use of force by prison staff is used disproportionately against prisoners with BAME backgrounds. Data shows that Black and Mixed Ethnic males are more likely to experience use of force in custody. This is a historical trend that we are working to tackle at national and local levels and was highlighted in the Lammy Report on the CJS.

70. There are a range of factors that drive this trend, and there is intersectionality between age and race in our use of force figures. A study by Runnymede and University of Greenwich also found that use of force had “increased in prisons where there had been a recent increase in the number of young adults” and that Black, Asian, Minority Ethnic prisoners “appeared to have experienced higher levels of UoF compared to their peers”. ^{[footnote 28]}

71. HMPPS Use of Force training aims to tackle bias in decision making and will continue to examine and, where necessary, improve a range of decision-making processes, by applying evidence-based strategies for reducing the potential impact of bias.

72. In using force to require adults to attend their sentencing hearing – there is a risk that BAME prisoners will be negatively impacted. However, any decision to use such force under these provisions would have to be assessed and authorised by the prison Governor or Prisoner Escort and Custody Services who would need to determine on a case-by-case basis whether it is necessary, reasonable and proportionate – and therefore lawful – in the circumstances to use force for the purposes of securing an offenders presence at their sentencing hearing, regardless of that individual’s protected characteristics.

Fostering good relations

73. We do not consider that these measures would have any significant impact on the achievement of this objective.