Jenna Downs, Senior Statistical Officer on the Council’s Analysis and Research team, explains why the Council has moved to using self-identified ethnicity data

The Council is committed to promoting fairness in sentencing, and one of the ways we do this is by exploring and understanding potential disparities within sentencing outcomes between offenders from different demographic groups. This work also helps us fulfil our obligations under the public sector equality duty (PSED), which commits the Council to consider the possible effects of our guidelines on different demographic groups.

We use the demographic information that is available to us to do just that. We use it to inform guideline development, making sure we consider potential equality issues throughout the development process. More recently, we have been putting more emphasis on exploring differences in sentence outcomes between demographic groups for the same offence, in both guideline development and evaluation, looking at the differences in sentences and the length of the custodial sentence according to an offender’s sex, age group and ethnicity.

As part of this process, and to improve our statistics, we have moved from using officer-identified ethnicity to self-identified ethnicity. The data tables we published as part of the sexual offences statistical bulletin on 12 May 2021 are the first to include this updated information.

What demographic information does the Sentencing Council have access to?

Our main source of information is the Court Proceedings Database (CPD); this is a large administrative dataset owned by the Ministry of Justice (MoJ). Among information on offences and details of sentencing outcomes, the CPD contains routinely collected information on offenders’ sex, age and ethnicity. There are two types of ethnicity information in the dataset: officer-identified ethnicity, which is the variable we used previously, and self-identified ethnicity, which is the variable we use now.

Why switch from police-identified to self-identified ethnicity?

The information on both classifications of ethnicity is collected by the police. Officer-identified is exactly that: the ethnicity that the police officer thinks the defendant is, and it is recorded as such. It is based on very broad ethnicity categories and can be collected either at the police station or on the street. Self-identified ethnicity is collected at the police station during a custody interview; the offender is asked to identify their own ethnicity by selecting from a more detailed list of options. This information is entered into the police administrative system and passed to Her Majesty’s Courts and Tribunals Service to record in the court administrative system, ready for us to use in our analysis.

Since we published the sexual offences data tables, the Council has made the decision to move to using self-identified ethnicity because we believe it is a more accurate representation of an offender’s actual ethnicity than the ethnicity they are perceived to be by others. It also has the added benefit of aligning us more closely with the MoJ statistics publications that are based on the CPD, which include information based on the self-identified ethnicity variable.

What kind of information does the Sentencing Council already publish on ethnicity?

Alongside every guideline, the Council publishes data tables containing statistics on the offences in question, and these have traditionally included a demographic breakdown of the number of offenders sentenced for each offence by sex, age group and ethnicity. Since the publication of the Firearms offences guidelines in December 2020, we have started publishing further breakdowns of this demographic information and now include additional data tables of sentencing outcomes, average custodial sentence lengths (ACSL) and sentence length distribution by each demographic group.

Further to this, we have conducted bespoke analysis on specific offences, such as conducting and publishing a regression analysis of drug offences, investigating differences in outcomes between the different ethnicities (more on this below).

How does the Sentencing Council use this information?

The data we collect and analyse is used throughout the guideline development process, with the Council continually reviewing this information as part of equality impact assessments of guidelines.

Since we published the Firearms offences data tables we have used analysis of the CPD data to highlight clear evidence of disparities within the actual guidelines. For example, if the data clearly showed a higher proportion of Black offenders received an immediate custodial sentence than White offenders for a specific offence, the Council would provide some text within the relevant guideline to encourage sentencers to be mindful of these disparities when sentencing. An example of this can be seen in the guideline for Firearms – possession of a prohibited weapon.

The Council has also used the analysis and awareness of how different demographic groups may be treated differently to make changes to the factors and wording in the guidelines, being mindful that certain factors may have a disproportionate effect on certain groups. One example of this would be the expanded explanation for the mitigating factor of remorse, which advises sentencers that remorse can present itself in many different ways, and an offender’s demeanour in court could be misleading for a number of reasons including a belief that they have been or will be discriminated against.

Where possible, analysis of data on demographic characteristics by sentencing outcomes is also now conducted as part of guideline evaluation and the Council considers findings from this as part of their decision-making process on whether a guideline needs to be reviewed.

Is the Sentencing Council aware of any reasons for why these disparities exist?

The new data tables and the subsequent text we provide in the guidelines highlight where we see clear differences in sentencing outcomes between ethnicities, but the underlying data we use does not provide us with the reasons behind them. We are unable to ascertain the reasons for the differences from the data we have so are simply highlighting that they exist and raising awareness of these disparities, as well as referring sentencers to the information and guidance in the Equal Treatment Bench Book.

As mentioned above, we conducted more detailed analysis of data on offences related to the supply of drugs. This was because the Council was developing revised Drug offences guidelines and was aware of MoJ analysis that had shown large differences in sentencing outcomes for different ethnic groups for drug offences, with Black, Asian and Minority Ethnic offenders shown to be much more likely to receive immediate custodial sentences than White offenders. We undertook our own analysis to investigate this area in more detail to inform the Council’s guideline development.

Our analysis involved using a statistical method called regression analysis to take into account (or ‘control for’) factors such as: the culpability of the offender; the harm caused by the offence (for these offences, usually the quantity of the drug); information on the number of previous convictions; aggravating and mitigating factors; and guilty plea information, as well as the offenders’ age group, sex and ethnicity. This analysis allowed us to isolate as far as possible the association between an offender’s ethnicity and the sentence imposed. What we found was that controlling for all of these different factors helped to explain some of the differences seen in the sentencing outcomes for these offences for different ethnic groups but, even after controlling for these factors, we still found some differences. Black, Asian and Other ethnicity offenders were all found to be more likely to receive an immediate custodial sentence than White offenders and. for Asian offenders, immediate custodial sentences were longer. We weren’t able to determine the reasons for these differences, but the analysis gave us additional insight into the disparities evident for these offences and helped us see that the differences couldn’t be explained completely by the main factors taken into account by judges. These disparities and links to the research were included in the relevant guidelines. You can read more about the analysis and the findings in the published summary report.

What other work is the Sentencing Council doing on this or planning for the future?

Last year, the Council held a roundtable discussion with a wide variety of stakeholders with particular interests in the area of racial and gender disparities within the criminal justice system. This discussion provided valuable insights that fed into the development of definitive guidelines. We are also currently in the process of commissioning research on equality and diversity in the work of the Sentencing Council. This research will review any potential for the Council’s work and guidelines to cause disparity in sentencing across demographic groups and how the Council can best engage with underrepresented groups to increase awareness and understanding of sentencing guidelines.

The Council seems to focus on ethnicity, what about the other protected characteristics?

The information that we have on sex, age and ethnicity is routinely collected by the police and the court system and is readily available to us to access from the CPD; unfortunately, information relating to other protected characteristics such as sexual orientation or disability is not. There are data available that cover these additional areas but it is not possible to link these with our sentencing data so we are unable to understand what impact, if any, our guidelines may have had or may be having. However, the Council understands that there is a need for research in these areas and we are looking into the possibility of obtaining data from other sources and building in more qualitative approaches, if possible, to some of these areas.

For more on the Council’s research and analysis, visit the research and resources pages of the website.