The Sentencing Council – the organisation that advises judges on how long convicted criminals should be locked up for – has hit back at criticism from the Justice Secretary. Shabana Mahmood challenged the Council’s apparent embrace of ‘two-tier justice’ last week, after it told judges to order a pre-sentence report (PSR) if an offender is from a minority background. Lord Justice William Davis, the Council’s chair, has now responded – and has doubled down on its new guidance to judges.
Davis said that Mahmood and her officials had been briefed in advance about the instructions on sentencing offenders from ethnic minorities. He also said that ministers could not “dictate” sentencing and vowed to take legal advice.
The trouble is that Davis’s letter to the Lord Chancellor is obsessed with procedure, rather patronising, and a direct rejection of the right of democratically elected politicians to decide how justice is done in this country. It’s also unnecessarily long.
The first couple of pages concern themselves with explaining in tedious detail information that Mahmood will already be aware of, such as the composition of the Sentencing Council, and the processes which govern the production of its guidelines. The following two pages explain the process by which this controversial decision was arrived at. Amidst the dull detail, however, there are some startling admissions.
The Council apparently decides to issue new or amended guidelines either because it wants to, or if ‘those with an interest in the relevant area’ suggest there’s a ‘gap in the sentencing landscape’. There is no mention of public opinion, parliament or ministers; just judges and ‘interested parties’ working in conjunction with ‘officials’. Davis’s letter makes it quite clear where the power rests.
As is often the case with failing arms of the state faced with public anger, Davis seeks to reassure us that, if nothing else, the correct process has at least been followed in this case. The Council, we’re reassured, consulted the Probation in Courts teams and considered the Equal Treatment Bench Book. On the basis of this, they decided to specify that certain groups of offenders should be expected to receive full PSRs, which the data shows make prison sentences less likely. They then published a consultation document.
In his letter, Davis said he was ‘not aware’ of any press comment on the change in the rules for cultural and ethnic minorities. His tone is almost peevish: No one noticed it before, why are they bothering us now.
Even more provocatively, Davis states that it is important for judges to ‘understand cultures and faith[s] that may not be within their general experience’. The implication, clearly, is that someone’s particular faith (so long as it’s not Christianity) might mitigate against the need for a prison sentence.
Davis also takes issue with the extent of Mahmood’s authority: ‘You will be aware of your power…to propose to the Council that sentencing guidelines be…revised’ but ‘this is not a power which has ever been used to ask the Council to revise a guideline immediately after is has been published’.
Let’s be very clear on what is happening here: a senior judge who chairs a quango is telling the Lord Chancellor, and His Majesty’s Secretary of State for Justice, that he is going to try to avoid following her instructions.
Davis says that when someone is being prosecuted ‘the state should not determine the sentence imposed on an individual offender’. Fair enough perhaps: judges should, and do, sentence in each individual case. However, he goes on to claim that ‘if sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached’.
This is nonsense. In the same way that ministers and parliament define crime, they also define sentencing. The idea that outcomes for individual offenders might become unjust because a democratically elected politician sets the rules is ridiculous.
Our judiciary have seemed increasingly arrogant in recent years, believing they have the right to overrule the will of parliament and the principles of natural justice. The people of this country rightly expect politicians to set the rules under which criminals are charged, tried and sentenced. But the Sentencing Council has made it clear that it will stand in the way of that principle.
Comments