The members of the Sentencing Council have been pushed into a humiliating climbdown – but it may well be too late to save them. The pressure rose over the weekend, with the Lord Chancellor and Prime Minister stating that they were considering emergency legislation in order to prevent the Council’s new, ‘two tier’ guidelines over Pre-Sentence Reports for ethnic minorities from coming into force.
Yesterday morning the Lord Chancellor put more pressure on the Council when she met Lord Justice William Davis, its chairman, and informed him that she would be bringing in immediate legislation this week to render the controversial section of the guidelines unlawful. In response, Davis crumbled. The Sentencing Council issued a statement insisting that while ‘its guidelines…[are] necessary and important’ they have ‘chosen to delay’ them until the new law receives Royal Assent. Even when defeated and surrendering it seems as though Davis and his Council are still trying to win the argument. Over the last few weeks, as this debate has rumbled on, they’ve badly misplayed their hand.
Davis has written two long, rambling and patronising letters to the Lord Chancellor. In the first he lectured her at length on procedure, and made it clear that he rejected the very principle that Ministers of the Crown might determine sentencing guidelines. He also asserted that the Sentencing Council might decide to concern itself with any ‘gap’ it perceives in ‘the sentencing landscape’ – under this Davis Doctrine the Council’s powers and responsibilities would endlessly expand at the expense of democratic control of sentencing.
The Lord Chancellor then sent a short, powerful letter in which she made clear arguments about principle. She explained that she considered this to be a ‘matter of policy’, which should be determined by those who are ‘accountable to the public, both in parliament and at the ballot’. The Lord Chancellor remarked that the disparity in sentencing outcomes is ‘real’ but that ‘it is the responsibility of government’.
She went on to demonstrate that she understands precisely how toxic and dangerous the Sentencing Council’s approach is. The Council is supposed to ‘promote public confidence in the criminal justice system’, but their new guidelines are ‘particularly corrosive’ in giving the ‘appearance of differential treatment before the law’. The Lord Chancellor is wise to identify this risk. If the majority ethnic group in the UK come to believe that the justice system is biased against them the consequences for public order and the safety of minority groups could be very grave.
The Lord Chancellor made it very clear that she supports Pre-Sentence Reports (PSRs) being used in every case where they are useful, and is creating more capacity in the probation service towards this end. This is also wise. Judges should have as much information as possible to inform their sentencing decisions. If someone is a sole carer for a child or vulnerable adult, then the court should be made aware of that before deciding whether a prison sentence is appropriate. Similarly, issues around coercion or mental health may affect how a judge sentences a guilty person.
The issue is that the Sentencing Council is seeking to make these PSRs available disproportionately to some groups it has identified as being at risk, while ignoring groups such as adults who’ve been in care – who make up 25 per cent of all prisoners. All the Lord Chancellor asked of the Sentencing Council was that they remove the list of specific ethnic, cultural and religious groups who should receive a PSR as a matter of course.
It took Davis a week to write another of his excessively long, procedure-obsessed letters. I’ve read it so you don’t have to. Three pages in, Davis explains that because ‘no errors were made… the Council could see no basis on which it should revise the guideline because of the process’.
He made no effort to engage with the Lord Chancellor’s excellent points about public confidence in the justice system. Perhaps he thinks such grubby matters as public opinion are beneath him and the Council.
Unfortunately for Davis. The Lord Chancellor has chosen to use the power at her disposal. She made it clear that the guidelines would have created ‘a justice system where outcomes could be influenced by race, culture or religion’ and that this is ‘unacceptable – equality before the law is the backbone of public confidence in our justice system’.
More seriously for Davis, I understand that the Lord Chancellor also hates the way in which the Council has sought to take power away from democratic control. The process is under way to develop legislation which will limit the Council’s power and ensure that ministers retain control over matters of policy. The Sentencing Council challenged the Lord Chancellor and lost. It remains to be seen whether its chair can survive in his role.
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