Judges Urged to Consider ‘Deprived Backgrounds’ of Criminals

Judges proceed to the Palace of Westminster in central London, as part of a tradition to mark the start of the new legal year, on Oct. 3, 2022. Niklas Halle'n/AFP via Getty Images

Judges in England and Wales will have to consider if criminals have come from a “difficult” or “deprived” family background before sentencing them, following a recommendation by the Sentencing Council.

In 2021 the Sentencing Council commissioned the University of Hertfordshire (UH) to conduct research into equality and diversity in the criminal justice system.

One of the recommendations in the UH report, which was published last year, was that judges should “consider including ‘difficult/deprived backgrounds’, ‘in work or training’ and ‘loss of job or reputation’” when they sentenced people for theft and robbery offences.

The Sentencing Council then proposed new guidelines for all offences which said, “Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending.”

Those “disadvantages” included:

• Early experience of loss, neglect or abuse
• Experience of discrimination.
• Negative influence from peers.
• Experience of having been a looked-after child (in care).
• Low educational attainment.
• Poverty.
• Insecure housing.
• Difficulties relating to the misuse of drugs and/or alcohol.

When they consulted stakeholders within or affected by the criminal justice system in England and Wales they found, “around two-thirds of respondents who commented on these proposed additions broadly agreed with the proposals though several of those had suggestions for changes.”

Several people or groups had “strong objections”, especially to the reference to poverty and poor housing.

The Restore Justice Foundation said, “Many people have gone through any or all of the above and/or many other adverse circumstances and disadvantages, however, those perceived disadvantages should never be considered either as a reason for offending or as a predisposition to offending, nor should they be considered ... as mitigating factors.”

They added: “This would be biased and prejudiced in itself. There are many people who haven’t gone down the criminal route but have experienced difficult circumstances or faced multiple disadvantages at some point in their lives or throughout their lives and have overcome those difficulties and disadvantages whilst being law-abiding good citizens. So why should any such disadvantages define an offender?”

Blue Collar Conservatives, founded by Tory MP and Cabinet minister Esther McVey, said: “We believe this is generally extremely patronising, not least to law-abiding working-class communities. Often it is actually those who come from the poorest communities who will be the victims of the crimes in these cases.”

‘Low Educational Attainment and Poverty Are Not Excuses’

They said, “Low educational attainment and poverty are not excuses to commit crimes.”

The group added: “Other examples are very subjective, for example, citing experience of discrimination could, on the one hand, apply to everyone in some way or another. If it is not supposed to apply to everyone, how would a sentencer truly know if someone had experienced discrimination and why and to what extent this should have a bearing on their sentence?”

Tory MP Philip Davies said: “I do not agree that having a difficult or deprived background makes you less culpable for committing an offence, such as robbery with all the violence that entails and the fear caused to the victim. However, I am at even more of a loss to understand why this mitigation is being suggested for all offences.”

But the Criminal Law Solicitors’ Association said: “It has to be right that all circumstances relevant to the offender should be taken into account. Whilst poverty and social deprivation do not of their own accord increase criminal behaviour, the impact upon a defendant should not be overlooked.”

The House of Commons justice committee said, “These factors are already taken into account by the courts.”

But they added, “We support the inclusion of the new mitigating factors and recognise that they will promote consistency of sentencing and support making sentencing more transparent to the public.”

The Prison Reform Trust challenged a reference in the guidance to “being voluntarily intoxicated” and said, “it suggests that people have agency over their addiction.”

In his response, Alex Chalk, the lord chancellor and justice secretary, said, “As regards the ‘difficult and/or deprived’ factor, the government is clear that many of the examples of difficulty or deprivation that have been set out in the consultation, such as low educational attainment and poverty, ought not to be relied upon as excuses to commit crimes.”

Justice Secretary: Guidelines Are ‘Patronising’ and ‘Inaccurate’

“Presupposing that relatively low income for example (or indeed other deprivation) indicates a propensity to commit crime risks appearing patronising at best, or inaccurate at worst,” he added.

Mr. Chalk said, “Moreover, many in society, including no doubt judges and MPs, will have encountered young people from modest educational or financial backgrounds who have shown scrupulous integrity and a commitment to leading a law-abiding life.”

“That said, I want to emphasise my support for ensuring that custody is used as a last resort,” he added.

After considering all the responses, the Sentencing Council, “decided to make a few amendments to the wording” and, “to add the new factors and their expanded explanations to all offence specific guidelines for adult offenders.”

A Ministry of Justice spokesman told The Telegraph, “Sentencing decisions are made by independent judges who already take into account the circumstances of each case in line with guidelines set out by the Sentencing Council.”