Policy paper

Overarching equality statement: sentencing, release, probation and youth justice measures

Updated 29 June 2023

This was published under the 2019 to 2022 Johnson Conservative government

This Equality Statement (ES) relates to the sentencing, release, probation and youth justice measures that will be included in the Government’s Police, Crime, Sentencing and Courts (PCSC) Bill (now Act). It presents a high-level summary of the equalities issues, benefits, risks and mitigations for the measures listed below:

• Abolishing automatic halfway release for certain serious offenders
• Multi-Agency Public Protection Arrangement (MAPPA) provisions
• Changing the way that discretionary life sentence minimum terms are calculated
• Abolishing discretionary halfway release for offenders who receive a sentence for offenders of particular concern (SOPC)
• Whole Life Orders for those who murder children
• Whole Life Orders for 18-20-year-olds in exceptional circumstances
• Preventing automatic early release for dangerous offenders who become of significant public protection concern
• Doubling the maximum penalty for assaulting an emergency worker
• Mandatory life sentence for the unlawful act manslaughter of an emergency worker except in exceptional circumstances
• Road traffic offences
• Threshold for minimum terms of repeat offending
• Licence termination amendment for sentences of Imprisonment for Public Protection (IPP)
• Increased use and flexibility of Electronic Monitoring in community sentences
• Simplifying the Out of Court Disposals Framework
• Establishing Problem-Solving Courts
• Abolishing Senior Attendance Centres
• Creating a statutory duty for the National Probation Service to consult on the design and delivery of unpaid work
• Strengthening supervision powers for probation practitioners
• Reforming criminal record disclosure rules
• Polygraph testing for service and repatriated offenders
• Parole Board provisions, including powers for the Parole Board to re-open cases and responsibility for setting licence conditions
• Amending discretionary driving disqualification provisions
• Streamlining release measures for use of nuclear material and weapons-related acts overseas
• Adding a standalone location monitoring requirement to the Youth Rehabilitation Order (YRO)
• Increasing the maximum daily curfew hours for YROs
• Making Youth Offending Teams or probation staff the Responsible Officers for YROs with electronic monitoring requirements
• Piloting stronger high-end youth community sentences
• Extending the upper age limit for YRO education requirements
• Abolishing reparation orders
• Amending the provisions for remands to youth detention accommodation
• Moving automatic release point for youth standard determinate sentences of 7 years or more for serious offenders
• Reforming Detention and Training Orders
• Changing minimum term starting points for murder committed as a child
• Changing tariff review eligibility for murder committed as a child
• Technical provisions to clarify the legal framework for secure schools.

Public Sector Equality Duty

In line with our Public Sector Equality Duty (PSED) responsibilities under section 149 of the Equality Act 2010, we have paid due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Having due regard to the PSED needs to be considered in light of the following nine protected characteristics:

• Race
• Sexual Orientation
• Marriage and Civil Partnership
• Sex
• Religion or Belief
• Gender Reassignment
• Disability
• Age
• Pregnancy and Maternity

We have undertaken early consideration of the equality impacts of the sentencing, release, probation and youth justice measures contained in the PCSC Act 2022. Many of the measures contained in this Equality Statement were also considered during work undertaken for the Sentencing White Paper: A Smarter Approach to Sentencing, published in September 2020.

Where relevant, our equalities considerations have included the recommendations from the Lammy Review to ‘explain or reform’ any disparity in outcomes for Black, Asian and minority ethnic (BAME) users of the Criminal Justice System.

We have considered the measures listed above in accordance with the statutory obligations under the Equality Act 2010. The following is a summary of our overall assessment.

Direct discrimination: We hold the view that none of the sentencing, release, probation and youth justice measures are likely to be directly discriminatory within the meaning of the Equality Act 2010 since they will not result in anyone being treated less favourably because of any protected characteristic. The Problem-Solving Courts measure has female offenders as the intended area of focus for one of the pilot locations. Men would not be able to access the programme in this location, carrying the potential risk of direct discrimination. However, the Equality Act 2010 expressly allows differential single sex services treatment provided (amongst other things) that they are a proportionate means of achieving a legitimate aim which we consider to be the case here in terms of reducing reoffending and the use of custody for a particularly high-needs/vulnerable cohort. We have chosen this focus for one of the pilot sites in light of the high proportion of female offenders in receipt of short prison sentences, the promising outcomes of the Manchester women’s Problem-Solving Court model, and our commitment to addressing the underlying needs of female offenders in line with our Female Offender Strategy (June 2018). The remaining locations will focus on substance misuse and domestic violence, remaining accessible to both men and women.

Indirect discrimination: Indirect discrimination occurs when a policy applies equally to all individuals but would put those sharing a protected characteristic at a particular disadvantage compared to those who do not. Our initial assessment recognises that some individuals with protected characteristics are likely to be over-represented in the groups of people the sentencing, release, probation and youth justice measures will affect as a result of the demographics of the existing offender population.

For example, in the Criminal Justice System we know that offenders with certain protected characteristics are overrepresented compared to the general population in both the adult and youth offender populations in both custodial and community settings: those who are male, and adults aged 18-39 (though there is a growing proportion of the prison population aged over 50). In general, BAME groups appear to be over-represented at most stages throughout the CJS, compared with the White ethnic group, and among BAME groups, Black and Mixed Ethnicity individuals are often the most over-represented, particularly among the prison population.

In the youth justice system, there is overrepresentation of certain protected characteristics in the system as a whole. Males are overrepresented relative to females; BAME groups are overrepresented relative to their distribution in the general population (29% of children receiving a caution or sentence in 2019/20 were from BAME groups vs 18% in the general population) and youth offender cohorts tend toward the upper end of the age range covered by the youth justice system (78% of children receiving a caution or sentence were aged 15 or over in 2019/20).^{[footnote 1]}

Although the number of sentencing occasions of children has fallen by 78% over the last decade (from 2009/10 to 2019/20) ^{[footnote 2]}, the proportion of children sentenced for more serious (indictable) offences has not been consistent across protected characteristics. The proportion of those sentences involving White children has decreased from 74% to 62% over the last five years ^{[footnote 3]}, while the proportion of Black children has risen from 14% to 22% over the same period.

This overrepresentation applies to some of the offender groups that will be affected by the above measures contained in the Act. The more specific ways in which these changes may indirectly affect offender groups is outlined below, together with how we consider the impacts are likely to be mitigated where necessary. To the extent that the impacts from these overrepresentations might be considered a particular disadvantage for those affected (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 these reforms which are to introduce a more targeted and nuanced approach to sentencing. This will restore confidence in our criminal justice system by ensuring that the public are better protected, while criminals will be both punished proportionately and given more opportunities to turn their back on crime.

Sentencing

The PCSC Act 2022 will change the threshold for passing a sentence below the minimum term for repeat offences including “third strike” burglary, “second strike” knife possession and “third strike” Class A drug trafficking. While we do not have data on repeat offences, the data available for those offences in general shows that males are overrepresented in the affected cohorts compared with the wider population. Similarly, those within a certain age bracket, particularly 30-39 year olds, are overrepresented 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. However, our overall assessment is that this is 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.

The Act will double the maximum penalty for common assault and battery, where these offences are committed against an emergency worker. By virtue of the overrepresentation of these groups in the cohort of offender to which this policy applies, we acknowledge that any adverse impacts arising from these changes will be more likely to affect male and Black offenders. The broader overrepresentation of BAME groups across the criminal justice system is reflected in the cohort of offenders that would be affected by this measure. Men, however, are less substantially overrepresented in this cohort than they are in the group of offenders convicted for the similar offence of common assault and battery. We do not, however, consider that these overrepresentations will likely result in any particular disadvantage for offenders with protected characteristics. Our assessment is that the changes described by these policy proposals are a proportionate means of achieving our aim to better protect the public by ensuring the maximum penalty reflects the severity of the offence. We therefore do not consider that these policy changes are likely to result in any unlawful indirect discrimination

The Act will introduce a mandatory life sentence for offenders aged 16 or over who are convicted of the Unlawful Act Manslaughter of an Emergency Worker acting in exercise of their functions as such a worker, unless there are exceptional circumstances that justify the imposition of a different life sentence. This provision will extend to England and Wales. There is a lack of data surrounding unlawful act manslaughter generally, and the unlawful act manslaughter of emergency workers specifically. We are therefore not able to identify by protected characteristic the cohort of offenders who will be affected by this policy. This policy is expected to apply to an extremely small group of offenders, due to the specificity of the circumstances in which the new sentencing provisions apply. Our assessment is that any potential disproportionate impact is a proportionate means of achieving our aim of ensuring that the penalty for the offence in the circumstances set out in the provision better reflect the severity of the crime.

In addition to creating a new offence of causing serious injury by careless driving, the Act will increase the maximum penalty for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs to life imprisonment. These provisions will extend and apply to England, Wales and Scotland. Generally, across England, Wales and Scotland, there is an overrepresentation of certain people in the criminal justice system with protected characteristics. We recognise that groups with certain protected characteristics are overrepresented amongst offenders who receive an immediate custodial sentence when compared to the general population for the existing two offences. We do not consider that anyone with a protected characteristic would be put at a particular disadvantage by the creation of the new offence. The law applies to all members of the public. Similarly, these provisions apply to all members of the public who contravene road traffic legislation relating to these offences.

The Act will amend Schedule 21 of the Sentencing Act 2020 to make a Whole Life Order the sentencing starting point for offenders who commit the premeditated murder of a child. While we are not able to identify by protected characteristic the cohort of offenders affected by this policy, we have considered the possible disproportionate impacts of the proposal. There is a possibility that the policy may disproportionately affect female offenders as women are more likely to meet the new criteria for killing one or more of their own children. However, our proposal will operate within the existing Schedule 21 framework so that judges have the discretion to depart from this and impose a high minimum tariff where appropriate. Where women are found to have killed their own child or children, CPS may bring a charge of infanticide or manslaughter rather than murder.

The Act will also make it possible for judges to impose a Whole Life Order on offenders aged 18-20 in exceptional and serious circumstances. We are not able to identify by protected characteristic the cohort of offenders affected by this policy, and there is a possibility that the policy may disproportionately affect male offenders from the relevant age group as male offenders are more likely to commit extremely serious offences (including murder) than female offenders. However, this policy is likely to apply to an extremely small group of offenders, and such an effect is justified as this change is considered necessary as a matter of public interest.

Release

We are introducing a new power that will allow the Secretary of State for Justice to prevent the automatic early release of those serving a standard determinate sentence (SDS) who are considered to pose a terrorist risk or other significant danger to the public. These individuals would be referred to the Parole Board instead of being released automatically before the end of their sentence. Although men, those aged between 30 and 39 and BAME individuals are over-represented in the SDS cohort in scope of this measure, it will apply to a very small number of offenders who are considered to pose a particular risk or threat. It is not possible to determine what types or groups of offenders will pose a terrorist risk or other significant danger to the public but, in any event, the role of the Parole Board in the process means the offenders in question will be released before the end of their sentence if the Board determines it is safe to do so. The outcome for each affected offender will therefore be dependent on the circumstances in relation to the risk of release for their individual case. We think this measure is unlikely to result in any particular disadvantage for the small number of offenders it will affect, and that, overall, the policy is a proportionate means of achieving the legitimate aim of protecting the public from dangerous offenders.

We are legislating to abolish the automatic halfway release point for certain serious violent and sexual offenders sentenced to a standard determinate sentence (SDS) of between 4 and 7 years to ensure they instead serve two-thirds of their sentence in custody. These offences are sexual offences in Part 2 of Schedule 15 of the Criminal Justice Act 2003 that carry a maximum penalty of a life sentence and the most serious violent offences within Part 1 of that schedule also with a maximum penalty of a life sentence - those being manslaughter, soliciting murder, attempted murder and wounding with intent to cause grievous bodily harm. Men, people with a Black ethnicity as well as younger adult offenders (aged 18-24) and offenders over the age of 50 are slightly more represented amongst those who would be affected by this change than those who would not. The change may have a greater impact on older prisoners over time since the policy relates to offenders spending a greater proportion of their sentence in custody and the pool of older offenders in prison is likely to grow as a result. However, we consider that it is unlikely to result in a particular disadvantage for offenders in these cohorts and that, overall, the policy is a proportionate means of achieving the legitimate aims of protecting the public and achieving consistency within the sentencing framework.

To further protect the public, we are introducing changes to Multi-Agency Public Protection Arrangements (MAPPA). These are the set of arrangements through which the Police, Probation and Prison Services work together with other agencies to manage the risks posed by violent, sexual or terrorist offenders under supervision in the community in order to protect the public. We do not consider that these changes to legislation will cause any particular disadvantage for offenders being managed under MAPPA. Although there is potential for unconscious bias in the determination of terrorism risk in cases where offenders have not committed a qualifying offence, we will take steps to mitigate this, including ensuring that:

• decisions regarding discretionary MAPPA management are based on information from a range of sources and are supported by all relevant partners;
• the MAPPA documentation asks specific questions about diversity considerations and serves as a reminder to panels to address these issues; and
• the NPS National Security Division will review the data relating to discretionary cases annually to ensure that offenders are not being referred in to MAPPA on disproportionate grounds

We do not consider that there are likely to be any disproportionate effects in the application of this policy to MAPPA managed offenders. We recognise, however, that for the proposal for the police to have the power to conduct personal searches on terrorist offenders, for the search to be possible, the offender must have a licence condition imposed requiring them to submit to the search. The current policy intention is that this will be dependent on them being assessed as posing a high or very high risk of serious harm, or exceptionally where they are assessed as medium risk but where there are sufficient concerns about the offender’s risk of re-offending, so as to justify mandatory testing and ensuring it is ‘necessary and proportionate’ to manage the risk. We further recognise that unconscious bias in decisions on which offenders end up being managed under MAPPA could affect this assessment of risk. We will therefore take a range of measures to mitigate this risk, including:

• ensuring that in all cases where an individual has been assessed as posing a high or very high risk of serious harm, the assessment is countersigned by a Senior Probation Officer or a Head of Service;
• discussing and agreeing risk levels at multi-agency panel meetings; and
• carrying out regular reviews in line with MAPPA guidance and NPS Policy

The Act will also add polygraph testing as a licence condition for service offenders for sex offences or domestic abuse offenders who meet the eligibility criteria, as well as repatriated sexual or domestic abuse offenders who meet the eligibility criteria. For domestic abuse perpetrators, the majority of those who would be eligible for polygraph testing would be White males aged between 30-39. However, we consider that the policy is a proportionate means of achieving the legitimate aim of protecting the public from dangerous offenders. Although the repatriation clause may disproportionately affect those of different races because they are repatriated from overseas, overall we do not consider the proposals likely to result in any particular disadvantage. This is because it simply brings this cohort in line with the application of the policy to all other offenders, regardless of sex, race, age or other protected characteristic.

In addition to the above measures, the Act will ensure that all offenders sentenced to a Sentence for Offenders of Particular Concern (SOPC) serve two-thirds of their sentence in custody before they can be considered for Parole Board release, in line with previous changes in legislation relating to certain terrorist offences. It will also amend the way that discretionary life sentence tariffs are calculated, so that the starting point for determining the minimum term an offender must serve in prison is at least two thirds, rather than half, of an equivalent standard determinate sentence. Both of these changes are necessary to achieve consistency with other parts of the sentencing framework. While the majority of those receiving a SOPC or discretionary life sentence are male, we believe this is justified in the circumstances.

Offender Supervision and Rehabilitation

We will simplify the Out of Courts Disposal (OOCD) framework. For both tiers of the simplified framework, the offender needs to accept responsibility or admit guilt and agree to the particular OOCD in order for the offence to be dealt with outside the court process. We know from the Lammy Review that some BAME defendants have little trust in the Criminal Justice System, which can lead them to offer a no comment response interview or not admit guilt. There is therefore a risk that the requirement to accept responsibility or admit guilt would mean a BAME individual would be less likely to receive an early intervention via an OOCD and would be more likely to be prosecuted. To mitigate against this, new OOCD guidance will address the issue as highlighted by the Lammy Review. We consider that, although there may be some disadvantage for those who are unable to receive an OOCD, overall this change is considered to be a proportionate means of achieving the legitimate aim of creating an OOCDs framework that provides consistency, simplification and more opportunities for engagement with intervention services. We do not consider that it will be likely to put any person with a protected characteristic at a particular disadvantage.

There is also a risk that the Problem-Solving Courts (PSC) pilots would put BAME offenders at a disadvantage for similar reasons to OOCD. Eligibility for PSCs, which will attempt to address the underlying needs of individuals to tackle the drivers of offending, would also be dependent on a guilty plea. However, when choosing the locations for the pilot, we will consider the most diverse areas to ensure that the broadest group of offenders are able to benefit from PSCs. We will also use data on protected characteristics collected during the pilot to inform any national roll-out of PSCs. We do not therefore think that the pilot puts any protected characteristic at a particular disadvantage in the mixed-sex offender sites. As set out above, one of the pilot sites will be for female offenders only. However, as men will be eligible for the PSC programme in the majority of pilot sites, we do not consider that the proposals would result in men being put at a particular disadvantage.

Our plans to abolish Senior Attendance Centres and Attendance Centre Requirements will only affect those between the ages of 18 and 24. However, the Offender Management Statistics Quarterly shows that between 2017 and 2019, approximately 80 offenders per month were sentenced to an Attendance Centre Requirement, resulting in c.950 cases annually before the pandemic (less than 1% of all Community Order and Suspended Sentence Order starts).^{[footnote 4]} Given their low usage, we do not consider that this measure will result in any particular disadvantage since these facilities were not used regularly. The alternative requirements, such as the Rehabilitative Attendance Requirement, will help ensure that future services can be better tailored to meet the rehabilitative needs of the individuals concerned.

We are legislating to increase the discretionary powers of Responsible Officers (ROs). Assuming the affected cohort is similar in makeup to the overall probation caseload, individuals affected by this change will be disproportionately young, male, and BAME compared to the general population in England and Wales. However, the Tiering Model used in offender management is designed to allow for changes as new evidence emerges around appropriate supervision levels for different groups. This should help ensure appropriate interventions and supervision is undertaken by all ROs when managing all offenders (including young, male and BAME offenders). For the purposes of the PCSC Act 2022, we are only considering the principle of legislative change, and will further consider the equalities implications within the scope of operational guidance in the future. We do not therefore consider that this principle of legislative change is likely to put any offenders with protected characteristics at a particular disadvantage.

To better enable rehabilitation, the Act will reform criminal record disclosure rules so that certain sentences over 4 years in length will become ‘spent’. It would also reduce the amount of time it takes for sentences shorter than 4 years to become ‘spent’. Those who are convicted of serious violent, sexual or terrorist offences listed in Schedule 18 of the Sentencing Code will be excluded from the changes to sentences over 4 years. The policy will overwhelmingly benefit most offenders through the introduction or reduction of rehabilitation periods for their convictions. With respect to those offenders who do not benefit from the policy, namely those offenders convicted and sentenced to more than 4 years for serious offences, our initial assessment is that the change is not indirectly discriminatory within the meaning of the Equality Act.

Males, younger people (18-24) and those over 50 are overrepresented in relation to the most serious violent, sexual or terrorist offences, which are offences that are excluded from these changes. Our assessment is that excluding those convicted of serious violent, sexual or terrorist offences is a proportionate means of achieving the legitimate aim of protecting the public. The nature and seriousness of these offences means that they should continue to be disclosed. There is a higher proportion of BAME groups in scope of the policy that are sentenced to over 4 years’ SDS for applicable offences than those sentenced to under 4 years. Males from a BAME background who received a custodial sentence of over 4 years which are not a Schedule 18 offence are therefore likely to be positively impacted by this policy.

In addition to the above measures, the Act will make the following changes. To strengthen the non-custodial options available to sentencers, we intend to both increase the use of Electronic Monitoring and introduce greater flexibility into the system. We are also introducing a new statutory duty, which will require probation officials to consult key community stakeholders on the design and delivery of Unpaid Work. We have not been able to identify aspects of these polices that would discriminate or give rise to disproportionality based on the available data. We also already have safeguards and guidance (Community Payback Guidance on Diversity) in place to ensure that the diverse needs of service users are addressed when designing and delivering Unpaid Work.

The Act makes a change to licence terminations for offenders serving Imprisonment for Public Protection sentences (IPP), and youth and armed forces equivalents. These offenders are eligible to have their licence terminated at the discretion of the Parole Board once 10 years have elapsed from their first release. The Secretary of State has made it his policy to seek to refer every eligible offender to the Parole Board for licence termination. Currently, the Secretary of State applies to the Parole Board on behalf of eligible offenders, though the Secretary of State must first obtain permission from the offender prior to making the application. This amendment enables (and requires) the Secretary of State to refer the offender to the Parole Board for licence termination on their behalf without the need for the Secretary of State to seek prior permission from the offender before doing so. It also clarifies that the Secretary of State must refer offenders to the Parole Board if they are in custody following recall under the IPP licence. If so, the Parole Board must instead determine if it is necessary for the protection of the public that, when released, the offender remains under the IPP licence. Where an offender’s application for licence termination is rejected by the Parole Board, the Secretary of State would then automatically re-refer them every 12 months for consideration. This amendment will reduce the burden on individuals in terms of compliance with restrictions on liberty.

Protected characteristics we are able to identify as overrepresented in this group are white men aged between 30-49. This amendment will therefore have a disproportionate impact on this group. However, we believe such an impact is justified in the context of the overall change. It should also be noted that this will be a positive impact (as the change itself will facilitate the end of the IPP licence for eligible offenders).

Additional Legislative Amendments

In addition to the above measures, the PCSC Act 2022 will contain a number of small legislative amendments, as illustrated on page 1 of this statement, which we have considered and agreed will not discriminate or impact disproportionately on any group. This includes legislative changes and clarifications relating to the Parole Board, which are designed to improve the operational efficiency and performance of the Parole Board. We recognise that prisoners with certain protected characteristics are overrepresented in the prison population in England and Wales, but we do not think that any prisoner will be disadvantaged due to a protected characteristic as a result of these changes.

Youth Measures

The aim of the youth measures in this Act are to ensure that children are diverted from custody and managed in the community wherever possible and that custodial remand is not used unnecessarily, whilst at the same time making sure those who commit the most serious offences serve an amount of time in custody which reflects the seriousness of their offending. Based on the available data, we believe that children who are older, BAME, and male may be more likely to be affected by these changes because they are overrepresented in the youth justice system.

We are introducing changes to the Youth Rehabilitation Order with the aim of giving courts more confidence in their ability to act as a robust alternative to custody. While the data suggests that younger age groups, Black children and girls are disproportionately represented in the cohort currently sent to custody who may be affected by these measures, there is also evidence ^{[footnote 5]} suggesting that BAME offenders may be perceived as higher risk and therefore less likely to be diverted from custody.

In order to reduce the use of custodial remand for young offenders, the Act will amend the tests courts must apply to determine whether to remand a child into custody and introduce a statutory requirement for the courts to record the reasons for their decision. While the available data shows that Black children are disproportionately represented in the youth custodial remand population, the evidence that BAME offenders may be perceived as a higher risk suggests they may be less likely to benefit from these changes. The Youth Justice Board have commissioned research into the drivers of ethnic disproportionality in remand and sentencing outcomes which should help inform the MoJ’s review into youth custodial remand.

The Act will also remove the fixed lengths of Detention and Training Orders (DTOs). Where there is an early guilty plea, the removal of the fixed DTO length could lead to an increase in custodial length. The data suggests that this would have more of an impact on boys and older age groups. The impact this will have on BAME children is unclear; the Lammy Review found that BAME defendants are less likely to plead guilty, ^{[footnote 6]} and would therefore be less likely to be given longer sentences for this reason. However, BAME children are also disproportionately represented in the remand population and would be more affected by the ability for more accurate reductions based on time served on remand.

The changes to Detention at HM Pleasure (DHMP) and minimum term reviews are likely to result in older children being given longer sentences in most cases, as well as fewer opportunities to review their minimum terms. However, these changes were made with the specific intention to reflect the differences in maturity and development between older and younger children and we believe the disproportionate impact is justified. We have not been able to identify aspects of the other changes to custodial sentences, including automatic release from determinate sentences of 7 years or more for certain serious offences, that would discriminate or give rise to disproportionality based on the available data.

We have considered any disproportionate impacts from the youth sentencing measures. While we recognise that there may be indirect impacts on children with certain protected characteristics who are overrepresented in the affected groups, we believe that the principle of public protection and the overarching aim of the youth justice system to prevent offending by young people justify the changes outlined.

We are also introducing a number of technical measures to clarify the legal framework surrounding future secure schools. These measures will clarify that setting up, establishing and operating a secure school can be a charitable activity; introduce a clear statutory power for the Secretary of State and secure children’s homes to temporarily release children in secure children’s homes; and clarify that 16 to 19 academies can provide secure accommodation when approved to do so by the Secretary of State. We will continue to assess the impact of the wider secure schools programme on people with protected characteristics. However, as these measures are technical in nature and relate to the legal framework only, we don’t expect they will have a particular impact on people with protected characteristics.

Discrimination arising from disability and the duty to make reasonable adjustments: We do not consider that the proposals are likely to result in any discrimination against people with disabilities.

For Out of Court Disposals (OOCDs), it is important to ensure that individuals with disabilities (including those with learning difficulties or mental health issues) understand the implications of admitting guilt or accepting responsibility for the offence committed, and how they can comply with the conditions imposed on them. The current Code of Practice for Adult Conditional Cautions states that officers must have regard to the provisions of PACE Code C concerning mentally disordered or mentally vulnerable offenders and the use of an appropriate adult. This provision would be reinforced in the revised Code of Practice.

The proposed pilots for Problem-Solving Courts are designed to address the specific needs faced by certain groups of offenders, which could include those with disabilities such as mental health conditions.

All our proposals recognise that it remains important to continue to make reasonable adjustments for disabled offenders to make sure appropriate support is given to enable rehabilitation and fair access to justice.

Advancing equality of opportunity: We have considered this limb of the duty and our overall assessment is that there will be some measures within the PCSC Act 2022 that are likely to advance equality of opportunity. Many of the measures in this equalities statement are designed to recognise the differing needs of offenders, which will often be linked to protected characteristics. Measures designed to support community rehabilitation divert offenders away from courts are likely to be of benefit to everyone.

We also consider that our proposed pilot of Problem-Solving Courts, with its focus on addressing offenders’ needs, will advance opportunities for those with mental health issues, women and those who have children.

The proposed simplification of the OOCDs framework will provide more opportunities for offenders to engage with intervention services that address the behaviours that drive their offending, such as drug and alcohol misuse. It will also have a positive impact on victims, amplifying their voice in the process and increasing the opportunities available for reparation.

Our proposal to allow certain sentences over 4 years in length to become ‘spent’, and sentences under 4 years to have reduced rehabilitation periods, advances equality of opportunity for women and people of a BAME background with a criminal record, as it will make it easier for them to enter employment.

Fostering good relations: We have considered the implications of the above measures for fostering good relations and suggest that some of the measures aimed at protecting the public and reducing the harm caused to victims and communities by reoffending may support this limb of the duty. This also applies to those proposals which have the potential to increase awareness around the benefits of taking a more holistic approach to high needs offenders, including those with disabilities such as mental health conditions, in order to drive down re-offending and create other positive change.

Good relations may be harmed if the simplification of the OOCD framework is perceived to disadvantage the BAME community. However, the MoJ has taken steps to restore the trust of BAME communities in the criminal justice system by implementing some of the recommendations of the Lammy Review. For example, we are piloting the Chance to Change programme, which places less of an emphasis on guilt and allows offenders to benefit from intervention without accepting responsibility for the alleged offence.

Ongoing equalities assessment: We will continue to consider the equalities impacts of these individual measures as they become clearer.

We have assessed the impact of each of the broad measures on equalities and undertaken Equality Statements for the most substantial proposals.

Welsh language: We have considered the implications for Welsh language in the development of these sentencing measures, including in the Welsh publication of the Sentencing White Paper: A Smarter Approach to Sentencing.

1. MoJ/YJB (2020) Youth Justice Statistics 2018/19 ↩

2. MoJ/YJB (2020) Youth Justice Statistics 2018/19 ↩

3. A ten-year comparison is not available. ↩

4. Ministry of Justice, Probation Statistics 2018, Table A4_8 ↩

5. Mullen, J. Young, L. 2014. Improving outcomes for young black and/or Muslim men in the Criminal Justice System. ↩

6. The Lammy Review (2017) ↩