Investigating the association between an offender’s sex and ethnicity and the sentence imposed at the Crown Court for drug offences

Summary of key findings

To support the revision of the Sentencing Council’s Drug Offences guidelines, the Council has commissioned analysis of sentencing data[i] to consider the association between an offender’s sex and ethnicity and the sentence imposed at the Crown Court for three supply-related drug offences: supply; possession with intent to supply; and conspiracy to supply a controlled drug of classes A and B.[ii],[iii]

The study looked only at sentencing practice at the Crown Court, using Crown Court Sentencing Survey (CCSS) data from between April 2012 and March 2015.

The CCSS data allowed the analysts to identify and control for a wide range of factors considered by the judge in sentencing drug supply offences, specifically: the culpability of the offender, the harm caused by the offence, many of the relevant aggravating factors (including the number of previous convictions) and mitigating factors, whether and when the offender pleaded guilty, and the offender’s age group.

The findings suggest that after controlling for many of the main factors that sentencers are required to take into account when sentencing these three specific offences, an offender’s sex, and to a lesser extent, their ethnicity, were associated with different sentencing outcomes.

Not all factors considered by the judge could be included in the analysis. It is not possible to discount completely the influence of any factors that were not included.[iv] Therefore, the results of this analysis should not be regarded as definitive.

Findings related to an offender’s sex

The analysis found that an offender’s sex was associated with a statistically significant difference in the likelihood of receiving an immediate custodial sentence for the three supply-related drug offences, after controlling for other factors considered by the judge.

The odds of a male offender receiving an immediate custodial sentence for the three supply-related drug offences were 2.4 times the size of (or 140 per cent higher than) the odds for a female offender. (This does not mean that men are ‘140 per cent more likely’ than women to receive an immediate custodial sentence, and it does not mean that 240 men are sentenced to immediate custody for every 100 women.)

This would mean, for example[v]:

  • if 100 offenders of each sex were sentenced for possession with intent to supply a class B drug, and had the most common factors in the data taken into account by the judge, then around 37 male offenders and 20 female offenders would be expected to be sentenced to immediate custody; and
  • for the same example but with a class A drug, around 93 males offenders and around 85 female offenders would be expected to be sentenced to immediate custody.

Controlling for broadly the same factors as above, it was also found that male offenders received sentences on average around five months (or 14 per cent) longer than those imposed for female offenders.

Findings related to an offender’s ethnicity

The analysis found that an offender’s ethnicity was associated with a statistically significant difference in the likelihood of receiving an immediate custodial sentence for the three supply-related drug offences, after controlling for other factors considered by the judge. It showed that:

  • the odds for Asian and Other[vi] ethnicity offenders of receiving an immediate custodial sentence for the three supply-related drug offences were each 1.5 times the size of (or 50 per cent higher than)[vii] the odds for White offenders; and
  • the odds of Black offenders receiving an immediate custodial sentence for the three supply-related drug offences were 1.4 times the size of (or 40 per cent higher than) the odds for White offenders.

(This does not mean that, for example, Asian offenders are ‘50 per cent more likely’ than White offenders to receive an immediate custodial sentence, and it does not mean that 150 Asian offenders are sentenced to immediate custody for every 100 White offenders.)

This would mean, for example:

  • if 100 offenders from each ethnic group studied were sentenced for possession with intent to supply a class B drug, and had the most common factors in the data taken into account by the judge, then around 37 White offenders, around 44 Black offenders, and around 46 Asian and 46 Other ethnicity offenders would be expected to be sentenced to immediate custody; and
  • for the same example but with a class A drug, around 93 White offenders, 95 Asian offenders and 95 Black offenders would be expected to be sentenced to immediate custody.[viii]

Controlling for broadly the same factors[ix] as before, it was found that Asian offenders received custodial sentences for the three drug offences that were on average around one month (or 4 per cent) longer than the sentences imposed for White offenders.

No differences were found when comparing the custodial sentence lengths of White offenders with Black and Other ethnicity offenders.

[i]    Investigating the association between an offender’s sex and ethnicity and the sentence imposed at the Crown Court for drug offences is available on the Council’s website: www.sentencingcouncil.org.uk

[ii]    The offences are covered by the Misuse of Drugs Act 1971: Supplying or offering to supply a controlled drug s4(3); Possession of a controlled drug with intent to supply it to another s5(3). Conspiracy is an inchoate offence; it operates in combination with the principal offence. The Sentencing Council’s existing guideline for these offences can be seen here: https://www.sentencingcouncil.org.uk/offences/crown-court/item/supplying-or-offering-to-supply-a-controlled-drug/.

[iii]   In 2018, these offences accounted for around 12 per cent of all adult offenders sentenced at the Crown Court.

[iv]   This relates to factors collected as part of the Crown Court Sentencing Survey but which were not included in the analysis (e.g. because they were indicated on only a very small proportion of forms – see the Methodology section of Investigating the association between an offender’s sex and ethnicity and the sentence imposed at the Crown Court for drug offences for more details) and factors that were not collected as part of the CCSS.

[v]    These figures are taken from the predicted probabilities from the statistical model, and specific examples are given here, using the ‘reference offender’ for each class of drug (classes A and B). A probability is the likelihood of an event occurring.

[vi]   The ‘Other’ ethnicity group includes Chinese, Japanese, or South East Asian offenders, Middle Eastern offenders and any other ethnic group not counted within White, Black or Asian. See the table on page 8 of the full analytical report for the Census categorisation of ethnic groups.

[vii] Percentage comparisons are rounded to the nearest 10 per cent.

[viii] Low volumes of data prevented a comparable class A example for Other ethnicity offenders.

[ix]   Most of the same factors were used for this model of custodial sentence lengths as for the model looking at the likelihood of immediate custody. However, a slightly different list of aggravating and mitigating factors was used, to ensure that the analysis was based on the factors most commonly taken into account. See the Methodology section of the full report for details.