Today the Sentencing Council published a new Definitive Guideline on Sentencing Children and Young People. It is already being hotly debated in the press. One aspect of the controversy is that of race.

One paragraph buried within the Definitive Guideline, which will come into force on 1 June, addresses race directly. When sentencing, paragraph 1.18 requires courts to take into account “the particular factors which arise in the case of black and minority ethnic children and young people”. The preceding two sentences identify the relatively high proportion of black and minority ethnic children in care as well as, possibly, discrimination they have suffered and their negative experiences of authority.

That is it. The words “ethnic” and “black” do not occur outside that paragraph. It might be thought surprising that such a circumspect and cautious paragraph would have attracted attention but, as with any racial issue, it has attracted intense reaction (both positive and negative) from media outlets.

The first thing to point out about the offending passage, is that it only requires courts to “have regard” to an offender’s racial background. Anyone who observes even the simplest youth case being sentenced in the Magistrates’ Court will realise that many variables are brought into play – the history of offending, any misuse of drugs or alcohol, parental involvement and (most importantly) the nature and circumstances of the offence. It is true that the Definitive Guideline requires a more detailed investigation of the offender’s background than was previously undertaken. Amongst the plethora of issues to be considered, issues relating to ethnic background will very often be of little importance.

Those criticising the text of the paragraph might also want to consider that it is already possible (and sometimes desirable) for lawyers representing clients from ethnic minority backgrounds to raise the issues alluded to in the paragraph. . Courts are (rightly) empowered to look at all relevant facts in determining sentence. Of course, the inclusion of such factors in the Definitive Guideline may well strengthen such arguments, but the arguments are already made without the Definitive Guideline.

Perhaps more importantly, the Lord Chief Justice and the other experienced lawyers appointed to the Sentencing Council have hardly plucked this matter out of the ether. The footnotes to the paragraph reference two sources evidencing the over-representation of black and ethnic minority children in the justice system and in care (both are official government documents). The approach advocated for in the Definitive Guideline is hardly therefore the result of a knee-jerk or politically motivated claim of discrimination.

All these contextual factors reduce both the controversy and the novelty of the Sentencing Council’s approach to race. However, the crucial argument in its favour is much more fundamental. A close reading of the paragraph (the kind, one hopes, it would receive from the Court) shows that the factors the Court is being asked to take into account do not relate to ethnicity. The paragraph states that children from ethnic minorities are over-represented in the justice system and requires Courts to take into consideration “the particular factors which arise” in relation to them. This is an injunction to consider factors such as a young person’s time in care and discrimination they may have suffered at the hands of the state. These factors would equally be taken into account if the offender was white. It is easy to imagine the lawyer for a white child who had been in care or had been discriminated against (e.g. if they were mentally ill) raising such matters before the court.

In essence, the new guidance does not require that race is taken into account when the court passes sentence. All it states is that certain factors that should be considered anyway (such as a history in care) arise more frequently in the case of ethnic minority children.

It is arguable that the phraseology of the paragraph lends itself to misinterpretation and the Sentencing Council could as easily have made points about considering discrimination and a history in care without reference to race. Nevertheless, this particular part of the Definitive Guide represents an important (and arguably brave) attempt to tackle the impact of race on the individual’s experience of the justice system.

The legal impact of this particular element of the new guidance will be limited. The same may not be true of its perceived importance.