April 1st, 2025 | Megan Priestman

The UK's Near Descent Into A Two-Tier Justice System: Echoes Of Canada's Flawed System

The British are trying a failed Canadian experiment.

The United Kingdom recently stood on the precipice of a judicial transformation that threatened the very bedrock of its legal system: equality before the law.

The Sentencing Council's new guidelines were set to take effect on April 1, 2025, advocating for differential treatment based on offenders' backgrounds, eerily mirroring Canada's contentious approach. That paradigm shift would have formally establish a two-tier justice system, where the scales of justice would be tipped not by the gravity of the offence, but by the personal identity of the offender.

Thankfully, due to public backlash, the Sentencing Council decided to suspend theimplementation of the new guidelines.

Public Outcry and Political Dissent: Labour Party Divisions and ConservativeCriticism

The proposed introduction of the UK’s new Sentencing Guidelines had ignited afirestorm of criticism across the political spectrum.

Even within the Labour Party, there is unease. The current Justice SecretaryShabana Mahmood, publicly expressed her concerns, asserting that the guidelinescould "bias into the criminal justice" (The Independent). She had taken proactive steps by writing to the Sentencing Council, urging a reconsiderationof the guidance to uphold the principle of equality under the law.

Echoing this sentiment, Conservative leader Kemi Badenoch had called forlegislative intervention to prevent the entrenchment of a two-tier system. In responseto the proposed guidelines she had pledged her support for their revision, promising,"If the Justice Secretary... doesn't want a two-tier criminal justice system she shouldchange the law and the Conservatives will back her." (The Independent).

Feeling the pressure, Prime Minister Keir Starmer attempted to distance himself fromthe controversy, arguing that the Sentencing Council operated independently andthat the guidelines were initially developed during the previous Conservativegovernment. This defense, however, did little to quell criticism from both the opposition and within Labour, with members of his own party questioning the implications of the policy. But it was Shadow Justice Secretary Robert Jenrick who ultimately halted the Sentencing Council's proposed guidelines. To counteract their implementation he publicly announced his intention to pursue a judicial review, aiming to challenge the guidelines’ legality and to prevent their enforcement. He set a deadline for the Sentencing Council to respond to his legal challenge, indicating that failure to do so would prompt him to seek an injunction. This legal pressure contributed to the Council's decision to suspend the introduction of the guidelines.

Sentencing Reports: Post-Trial Considerations in Criminal Cases

In both Canada and the UK, specialized reports are used almost exclusively in criminal cases after a defendant pleads guilty or is convicted. These reports are designed to guide sentencing by providing context about the offender’s background. The UK’s pre-sentencing reports (PSRs), Canada’s Gladue Reports (for Indigenous offenders), and Impact of Race and Culture Assessments (IRCAs) (for Black and other ‘racialized’ offenders) all serve to inform the court of systemic and personal factors that may mitigate punishment. While these reports aim to provide a fuller picture of the offender’s circumstances, they also raise critical concerns about fairness and the potential for abuse.

Exploiting the System: The Case of Edward Smith

Canada’s system has witnessed instances where these assessments have been manipulated, leading to leniency that is not justified by the facts of the case. A notable example is that of Edward Smith, a young black man who participated in an armed robbery. Despite having no documented history of discrimination, oppression, or systemic disadvantage, Smith submitted an IRCA, which led to a significantly reduced sentence. He later admitted, “I didn't face racism... It was my only way out of this situation. I took full advantage.” (The Free Press).

This case highlights a glaring flaw in the system: offenders can claim systemic oppression without proof, relying on assessments that operate under the assumption that race or cultural background inherently mitigates criminal culpability. In contrast, in the UK, where pre-sentencing reports can be interrogated and new evidence introduced by prosecutors, such abuse is less likely to occur. This, however, is not a guarantee that justice will be blind.

Preparing the Reports: A Question of Objectivity

One of the fundamental differences between the UK’s PSRs and Canada’s Gladue Reports and IRCAs is who prepares them—and this distinction has serious implications for objectivity and accuracy in sentencing.

In the UK, PSRs are typically prepared by probation officers, who often have first- hand knowledge of the offender's personal circumstances due to their close relationship with the individual. These officers are government employees whose role is to provide neutral, fact-based assessments of an offender’s background, risk level, and potential for rehabilitation. Because probation officers work directly within the criminal justice system, they are more likely to provide contextually accurate and realistic recommendations based on observed behavior rather than abstract sociological theory.

By contrast, in Canada, Gladue Reports and IRCAs are written by independent specialists, activists, or social justice advocates—individuals who are very likely to be ideologically motivated. These report writers operate outside the direct oversight of the justice system, and their reports often lean heavily on broad systemic narratives rather than individual circumstances.

A review of multiple job advertisements for Gladue and IRCA report writers reveals a clear expectation for applicants to hold specific ideological beliefs. For example, candidates must demonstrate a commitment to restorative justice, a legal philosophy that prioritizes rehabilitation and reconciliation over punitive measures. Moreover, prospective writers are expected to accept systemic racism as a reality and hold the view that the impacts of colonization continue to affect communities today (BCFNJC). These requirements indicate that the reports are not merely neutral assessments of an offender’s background but are instead framed within a particular socio-political lens that assumes external systemic forces are a major contributing factor to an individual’s criminal behaviour.

Furthermore, some job postings give preference to Indigenous applicants or individuals with lived experience in ‘racialized’ communities, raising concerns about potential bias in how these reports are framed and the types of narratives they emphasize (First Peoples Justice Centre). Unlike probation officers in the UK, who are directly accountable to the justice system and whose recommendations can be scrutinized through institutional oversight, Gladue and IRCA writers are often employed by activist organizations and advocacy groups. This further underscores the ideological nature of their work and the potential for reports to be constructed in a way that aligns with a predetermined worldview rather than an objective assessment of the offender’s individual circumstances.

Interrogating the Evidence: Reviewing and Challenging Reports

Another key distinction is the extent to which PSRs can be challenged and scrutinized by the prosecution. In the UK, the prosecution has full access to these reports before sentencing. If there are inaccuracies or mitigating factors that the prosecution wishes to challenge, they are permitted to do so in court. Prosecutors can also introduce additional evidence, such as victim impact statements or instances of prior criminal behavior not included in the PSR in order to argue for a stricter sentence. If necessary, they can question the probation officer who prepared the report to clarify disputed facts.

Prosecutors can also file sentencing memoranda to counter defence claims made in the PSR and present alternative recommendations to the judge. In short, prosecutors have the ability to properly interrogate the evidence put forward in a PSR.

By contrast, Canadian Gladue Reports and IRCAs are not subject to the same level of prosecutorial scrutiny. While the prosecution can question the report’s author about factual inconsistencies, they cannot introduce new evidence to challenge the report’s claims. This means that even if a Gladue Report or IRCA contains misleading or incomplete information, prosecutors are limited to cross-examining the report’s author rather than presenting additional evidence that might counter the narrative provided. Importantly, prosecutors cannot dispute the broader legal framework that mandates consideration of systemic racism and colonialism’s impact on the offender. Courts generally defer to these reports as expert assessments, giving them significant weight in sentencing decisions, which makes the fact that they cannot be properly interrogated all the more concerning. While it is conceded that the UK’s approach offers a more balanced and transparent sentencing process than Canada’s ideologically driven framework, it remains to be seen if this will be the practice going forward.

While the proposed UK sentencing guidelines raised serious concerns, it is important to note that they were less far-reaching and structurally problematic as Canada's existing framework. The UK’s system, at the very least, would have allowed for judicial discretion and the ability for the prosecution to introduce new evidence about the offender’s circumstances. Nonetheless, the principle remains the same, any form of two-tier justice where identity factors take precedence over individual responsibility undermines the rule of law.

A Warning to the UK

The underlying premise of the guidelines that membership in a particular group inherently signifies victimhood of systemic issues such as racism, poverty, or abuse is fundamentally flawed. Such assumptions risk reducing individuals to mere representatives of their demographic, stripping them of their agency and unique personal circumstances. This not only undermines the principle of individual responsibility but also opens the door to exploitation by those seeking to manipulate the system for personal gain.

The United Kingdom came perilously close to replicating Canada's misguided experiment with identity-based sentencing. Instituting differential treatment based on group identity poses significant risks, including the erosion of public trust in the justice system, fostering resentment among those who perceive themselves as unfairly disadvantaged, and ultimately compromising the foundational principle of blind justice.

The suspension of the Sentencing Council's proposed guidelines marks a crucial moment for the UK to reflect on the importance of maintaining equality before the law. The UK must heed the lessons from this near-miss and from Canada's experience to avoid entrenching a two-tier justice system that privileges identity over individual actions in future.