Policy paper

Minimum terms for repeat offences in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

Policy summary

The Sentencing White Paper, ‘A Smarter Approach to Sentencing’ published on 16 September 2020, included the proposal to change the threshold for passing a sentence below the minimum term for certain offences including a third domestic burglary, a repeat offence involving a weapon or bladed article and a third class A drug trafficking offence. The aim of the proposal is to seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

The change will also align the criteria used for these offences with the wording used in section 311 of the Sentencing Code (as introduced by the Sentencing Act 2020). This states, in relation to offences involving firearms, that the court must impose an appropriate custodial sentence of at least the minimum term unless the court is of the opinion that there are “exceptional” circumstances which relate to the offence or to the offender and would justify not doing so.

This document assesses the potential equalities benefits and risks that have been identified in relation to changing the threshold. It considers the justification for the change, any necessary mitigating actions which have been proposed to reduce the likelihood of the risks and includes an assessment of any equalities benefits.

Equalities considerations

In accordance with our duties under the Equality Act 2010 we have considered the impact of the proposals on individuals sharing protected characteristics in order to give 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)
  • foster good relations between different groups (those who share a relevant protected characteristic and those who do not)

Having ‘due regard’ needs to be proportionately considered against the 9 “protected characteristics” under the Equality Act 2010 – namely race, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.

Equalities data

Full equalities data is currently unavailable as the required data on repeat offenders is not published. We are therefore unable to identify the characteristics of those who are in scope (those with previous convictions for repeat offences) and out of scope (those without previous convictions for repeat offences) of this policy proposal. The data below therefore describes the total population sentenced for each offence irrespective of previous convictions, and is not therefore an accurate representation of those in scope of this policy. However, this data may be indicative of the equalities impacts for those in scope of this policy as there is no evidence to suggest that the demographic composition differs significantly for those in scope and out of scope for each offence.

In understanding the impacts on offenders most likely to be affected by these policy changes we have looked at the characteristics of offenders who were convicted of: possession of a blade or offensive weapon, threatening with a blade/sharply pointed article or offensive weapon in a public place, domestic burglary, and all class A drug trafficking offences. We have been unable to separate the data for possession of blade or offensive weapon and threatening with a blade or offensive weapon.

Total sentenced by age range, where known

Age range Possession of/threatening with a blade or offensive weapon Domestic burglary Class A drug trafficking
15-17 1,555 12% N/A N/A N/A N/A
18-20 1,966 15% 564 12% 4 2%
21-24 1,785 14% 574 12% 9 5%
25-29 1,825 14% 810 17% 24 14%
30-39 2,957 23% 1,558 32% 44 26%
40-49 1,717 13% 1,018 21% 40 23%
50-59 767 6% 282 6% 35 20%
60-69 134 1% 22 0% 12 7%
70+ 20 0% 3 0% 3 2%

This proposal applies to over 18s for domestic burglary and class A drug trafficking offences, and to over 16s for possession of or threatening with a blade or offensive weapon offences. We are unable to disaggregate 15 year olds from 15-17 age groupings so they remain included in data although unaffected by this proposal.

Total sentenced by sex, where known

Sex Possession/threat of a blade or offensive weapon Domestic burglary Class A drug trafficking
Male 11,652 93% 4,490 93% 151 88%
Female 914 7% 328 7% 20 12%

Total sentenced by ethnicity, where known

Ethnicity Possession of/threatening with a blade or offensive weapon Domestic burglary Class A drug trafficking
White 7,064 70% 3,243 86% 35 56%
Black 1,656 16% 287 8% 12 19%
Asian 623 6% 113 3% 12 19%
Mixed 515 5% 104 3% 1 2%
Chinese and other 190 2% 42 1% 3 5%

Other protected characteristics

We do not hold data on the protected characteristics of the impacted pools relating to religion or belief, disability, marriage or civil partnership, pregnancy and maternity, sexual orientation or gender reassignment. However, we do not consider that these proposals are likely to result in any discrimination.

Direct discrimination: We hold the view that these proposals are not directly discriminatory within the meaning of the Equality Act 2010 as they apply equally to any person who commits these offences. We therefore do not consider that the proposals would result in people being treated less favourably on account of any protected characteristic.

Indirect discrimination: Although we are currently unable to access equalities data specific to repeat offences, we have looked at the data for those offences generally. We recognise that some individuals with protected characteristics are likely to be over-represented in the groups of people this policy will affect, by virtue of the demographics of the existing offender population.

While it is difficult to fully demonstrate the equalities impacts with the current data limitations, we know that offenders with certain protected characteristics are over-represented in these offender populations when compared with the general population. The data we have show that males are significantly over-represented in the affected cohorts compared with the wider population. Similarly, those within a certain age bracket, particularly 30-39 year olds, are highly represented in the total population of those sentenced for these offences. BAME individuals appear to have high representation in the Class A drug trafficking cohort and possession of or threatening with a blade, whereas white individuals appear to have high representation amongst those sentenced for domestic burglary.

As a result, the proposal may put people with these protected characteristics at a particular disadvantage when compared to persons who do not share these characteristics since they may be more likely to be given a custodial sentence and serve longer sentences than before.

To the extent that the impacts from these over-representations might be considered a particular disadvantage for those impacted (and hence be potentially indirectly discriminatory under the 2010 Act), our overall assessment is that such impacts would be justified as a proportionate means of achieving the legitimate aims of the policy which is to ensure that offenders receive custodial sentences that reflect the severity of their crime and offending history. This should restore confidence in our Criminal Justice System by ensuring that offenders receive sentences that offer the appropriate level of punishment, reflecting the severity of the offence and their offending history.

Discrimination arising from disability and the duty to make reasonable adjustments

We do not consider that this proposal requires any further adjustments for disabled people over and above the ones already in place in courts and prisons. We will need to ensure that reasonable adjustments continue to be made for offenders with disabilities (e.g. those with learning disabilities, and mental health issues). Courts already have measures in place for making reasonable adjustments for disabled offenders. It is not considered likely that this measure will have any disproportionate impact on disabled offenders.

When imposing the sentence, the sentencer will be made aware of circumstances surrounding the offender including any disabilities. Offenders with mental health conditions will continue to be seen by the secure mental health service to ensure reasonable adjustments are made.

Advancing equality of opportunity between different groups

We do not consider that this proposal would have any significant impact on the achievement of this objective. Fostering good relations

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

Monitoring of impacts

The equality duty is an ongoing duty. Access to data in this assessment has been limited. We will continue to collect key statistics post-implementation which demonstrate the trends in sentencing, including age, gender and ethnicity for these offences.

We will draw on any data that could provide evidence on the impact of these changes to inform any future review of how the policy works for all affected offenders, including those with protected characteristics who are currently overrepresented in affected groups.