April 1st, 2025 | Megan Priestman

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

The British are trying a failed Canadian experiment.

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

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

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.

Public Outcry and Political Dissent: Labour Party Divisions and Conservative Criticism

The introduction of the UK’s new sentencing guidelines has ignited a firestorm of criticism across the political spectrum. Even within the Labour Party, there is unease. The current Justice Secretary, Shabana Mahmood, has publicly expressed her concerns, asserting that the guidelines could “embed bias into the criminal justice system.” (The Independent). Mahmood has taken proactive steps by writing to the Sentencing Council, urging a reconsideration of the guidance to uphold the principle of equality under the law. Her opposition underscores a key fracture within the party, representing those who worry that the guidelines fundamentally undermine fairness in sentencing.

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

Meanwhile, Prime Minister Keir Starmer has sought to distance himself from the controversy, arguing that the Sentencing Council operates independently and highlighting the fact that the guidelines were initially developed during the previous Conservative government. This defence, however, has done little to quell criticism from both the opposition and within Labour, as members of his own party question the implications of the policy.

The Perils of Assumptive Justice

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.

A Warning to the UK

The United Kingdom teeters on the brink of replicating Canada's misguided experiment with identity-based sentencing. While the intention to rectify historical injustices is commendable, the path of implementing differential treatment based on group identity is fundamentally flawed. It threatens to erode public trust in the justice system, foster resentment among those who perceive themselves as unfairly disadvantaged, and ultimately, compromise the foundational principle that justice is blind. The UK must heed the lessons from Canada's experience and tread cautiously to avoid entrenching a two-tier justice system that privileges identity over individual actions.