Robert Jenrick, the shadow justice secretary, has accused his Labour counterpart Shabana Mahmood of not believing in ‘equality under the law’ and ‘enshrining’ a ‘double standard’ over who is, and isn’t, sent to prison. The accusations against Mahmood – and the Labour government – came after new guidelines from the Sentencing Council were published, which appear to make prison less likely for ‘ethnic’, ‘cultural’ and ‘faith’ minorities who are convicted of crimes.
This shake-up appears driven by a belief that the justice system is biased against minorities
The Sentencing Council’s updated rules state that, for a number of groups, the assumption should be in favour of a pre-sentence report (PSR). Convicted people under 25, females, those from an ethnic cultural or faith minority, pregnant women or sole carers for children are all considered likely to be eligible to have a PSR, which can prove useful in making the case for why a person shouldn’t be locked up. Indeed, the government’s analysis shows that people who receive a detailed PSR are more likely to be spared jail. This shake-up appears to be driven by a belief that the justice system is disproportionately biased against ethnic and cultural minorities, and that guidelines should seek to remedy that.
The Justice Secretary responded to Jenrick’s accusation by insisting that: ‘I do not stand for any differential treatment before the law for anyone of any kind and there will never be a two-tier sentencing approach under my watch’.
The problem she faces is that the inevitable outcome of the Sentencing Council’s new guidance is that a white English person and an ethnic minority person convicted of the same crime are likely to face a different chance of being jailed. Indeed, that consequence is arguably the whole point of these changes.
The Sentencing Council appears to believe that our justice system is systemically racist, and that part of its job is to change that by weighting the scales in favour of those it believes are discriminated against. Even if Mahmood disagrees with that view, the Sentencing Council’s semi-autonomous status means the Justice Secretary is not able to direct the Council to change its rules. The danger of non-departmental public bodies, and other quangos, is that they drain power and control away from those who are supposed to exercise it on our behalf.
So what is the Sentencing Council and how are they able to change these rules? Established in 2010, at the very end of the last Labour government, the Council is a ‘non-departmental public body’, answerable to Parliament, but without ministerial control. The Council’s website states that it was created to ‘promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary’. This claim is hard to square with the Council’s next statement, that its ‘primary role’ is to ‘issue guidelines on sentencing, which the courts must follow unless it is in the interests of justice not to’.
The Council is comprised of eight judges, and six people with other experience of the criminal justice system (including an academic, a Chief Constable and the Director of Public Prosecutions). It has a number of ‘strategic goals’, including to ‘explore and consider issues of equality and diversity…and take any necessary action in response’,. It seems that goal has driven this week’s controversial announcement. Even this claim is strange, as the Council doesn’t take specific account of characteristics such as socioeconomic background, or having been in care, which are arguably stronger predictors of poor life outcomes.
When I asked the Sentencing Council for comment about the reforms they said that it ‘identifies particular cohorts for whom evidence suggests PSRs might be of particular value to the court. The reasons for including groups vary but include evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment.’
But there’s a danger here. A justice system which is perceived to be two-tier or biased against particular groups is one which may rapidly lose its legitimacy amongst those groups. That potential outcome would be particularly dangerous if the majority group in this country is the one which believes itself to be discriminated against.
Justice must be fair, and seen to be fair. Relying on unelected members of the legal profession and establishment to ensure that seems to have created a situation where the Justice Secretary should, on her own terms, reject this guidance. Will Labour challenge New Labour’s creation?
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