Black and minority ethnic offenders are far more likely to be sent to prison for drug offences than other defendants, according to groundbreaking research commissioned by the Sentencing Council.

The stark disparity in courtroom outcomes is exposed by the official body that advises judges as it prepares to update guidelines for dealing with drug offenders in England and Wales.

The investigation reinforces concerns raised by the review conducted by the Labour MP David Lammy on behalf of the Ministry of Justice in 2017 that found that BAME individuals face bias in court.

The Sentencing Council’s research concentrated on associations between an offender’s sex and ethnicity, and the type and length of sentence they received in three supply-related drug crimes. It drew on statistics from crown court records between 2012 and 2015.

The odds of a male offender receiving an immediate custodial sentence were found to be 2.4 times greater than for a female offender. Male defendants received sentences on average 14% longer than for women.

The odds of a black offender receiving an immediate custodial sentence were found to be 1.4 times the odds for a comparable white offender. For Asian offenders and those in the designated “other” ethnic group, the odds of receiving an immediate custodial sentence for the three drug offences were 1.5 times greater than for white offenders.

Asian offenders received custodial sentences on average 4% longer than the sentences imposed for white offenders, the research found. No differences were discovered when comparing custodial sentence lengths between other ethnic groups.

The Sentencing Council says it is “concerned that the sentencing guidelines should not contribute to or exacerbate [such] disparities”.

Launching a consultation on revising existing drug offence guidelines, it says it is “asking … whether any of the factors in the draft drug offences guidelines, or the language used, could impact disproportionately on different social groups”. The analysis did not identify reasons for the disparities in sentencing outcomes.

The council is proposing to update five drug offences guidelines that came into force in 2012 and cover offences under the Misuse of Drugs Act (MDA) 1971. Its aim is to “bring them up to date with modern drug offending” and to introduce four guidelines for new offences created by the Psychoactive Substances Act (PSA) 2016.

The consultation, which is open to the public as well as lawyers, judges and magistrates, is open until 7 April.

The Sentencing Council chair, Lord Justice Holroyde, said: “Drug offending affects a large cross-section of society; from people voluntarily involved in the trade including dealers and users, to families and the community who often have to deal with the aftermath, and it has to be taken seriously.

“The nature of offending is also changing and we are seeing more vulnerable people including children being exploited either through grooming or coercion. The proposed guidelines will provide guidance for courts and clear information for victims, witnesses and the public on how drug offenders are sentenced.”

Among new “culpability factors” likely to lead to tougher punishments that judges should include, the draft guidelines suggest, are exploiting children or vulnerable people to assist in drug-related activity and exercising control over another person’s home for drug dealing – the practice known as “cuckooing”.

Responding to the research, Lammy said the figures built on the findings of his review, which recommended that prosecutions against some black and minority-ethnic suspects be deferred or dropped to help tackle bias in the system.

“There is an urgent need for sustained training in the judiciary on both conscious and unconscious bias, and the government should revisit the need for a target to improve diversity on the bench,” he said.

Peter Herbert, the chair of the Society of Black Lawyers, said the data on the disparity of sentences given to different groups of offenders should be included in sentencing guidelines.

“The system generally does not acknowledge institutional racism at all and that is a part of the problem because whenever you raise it – and I raised it in courts as far back as the late 1980s – the response is, ‘Are you saying we should give black offenders an easier sentence?’ No, but we need to have a fair sentence,” he said. “The nonsense about justice being colour blind has been repeated for as long as I remember.”

Explaining the disparity in sentencing revealed by its research, the Sentencing Council said it would mean that if 100 comparable offenders from each ethnic group were sentenced for possession with intent to supply a class B drug then 37 white offenders, 44 black offenders, and 46 Asian and 46 “other” ethnicity offenders would be expected to be sentenced to immediate custody.

If the courtroom example involved a class A drug, such as heroin, then in the same circumstances the outcome would be for for 93 white offenders, 95 Asian offenders and 95 black offenders to be given immediate custodial sentences.

The “other” ethnicity group includes Chinese, Japanese, or south-east Asian offenders, Middle Eastern offenders and those not deemed to be white, black or Asian.

In terms of sex differences for offenders, the Sentencing Council explained, if 100 male and female offenders were sentenced for possession with intent to supply a class B drug in otherwise comparable circumstances, then 37 male offenders and 20 female offenders would be expected to be sent to prison immediately.

In the same example but with a class A drug, 93 male offenders and 85 female offenders would be expected to be sentenced to immediate custody. Male offenders were found to have received sentences on average five months (or 14%) longer than those imposed for female offenders.

A spokesperson for the judiciary said the discrepancy in sentencing for drugs offences identified by the Sentencing Council research was smaller than previously suggested. “There is no reason to suppose that the anomaly is caused by unconscious bias of any sort because, if it were, it would be apparent in other areas,” they said.



“Judges and magistrates receive training in unconscious bias and have extensive guidance in the Equal Treatment Bench Book concerning all minority groups. However, we are working hard to understand the causes of the discrepancy and will continue to do so.”

A Ministry of Justice spokeswoman said the department was working to tackle “the over-representation of black and Asian people and those from other ethnic minorities in the criminal justice system, which we know has deep-rooted causes”, and was taking forward the recommendations in Lammy’s review.