Two years ago, few had heard of the term ‘two-tier justice’. Indeed, Ministers and leaders across the criminal justice system have spent much of that time vigorously denying its existence. Yet the examples of a justice system which is failing to deliver ‘equality before the law’ are numerous: the failures of the police and prosecutors to act when individuals chanted for ‘jihad’ at a political rally; the sexual abuse of many hundreds of children in Rotherham because professionals feared being accused of racism; the postcode lottery of how non-crime hate incidents are recorded depending on which police force area you live in.
The publication of the sentencing council’s instructions on how judges and magistrates should approach the process of sentencing convicted criminals is the latest evidence of a two-tier justice system at work.
Disproportionate outcomes are not on their own evidence of discrimination
The new guidelines for the ‘imposition of community and custodial sentences’ instruct judges and magistrates that they must request and consider a pre-sentence report before forming an opinion about sentencing, unless the court considers it unnecessary because they already have sufficient information about the offender. This is a sensible approach. Pre-sentence reports enable the court to have as much information as possible about the offender, including the risk they pose to the public, before passing sentence.
However, the new guidance goes much further. Judges and magistrates are now instructed that, from the 1 April 2025, a pre-sentence report will normally be required if the convicted criminal is from one of a whole host of different groups. Some of these groups are reasonable, for example very young first-time offenders, for whom a prison sentence may well not be in the interests of justice. But the list also requires a pre-sentence report if the criminal is female, from an ethnic, faith or cultural minority group, or if they have ‘disclosed they are transgender’. An offender who is white or male will not, unless they can fit themselves into one of the other groupings available, automatically qualify.
Pre-sentence reports, typically written by a probation officer, are key to judges and magistrates deciding whether to sentence an offender to prison or to a non-custodial community order – particularly in borderline cases. As a result, deciding which defendants automatically receive a pre-sentence report, and which don’t, can be key in deciding who goes to prison and who doesn’t.
The sentencing council has defended its position on the basis of ‘disparities in sentencing outcomes’, but with this statement they reveal the ideological capture which they have allowed themselves to become a victim of. Disproportionate outcomes are not on their own evidence of discrimination. As one senior leader in the criminal justice system said to me recently, ‘we need to play the ball that we are bowled.’ Yet he seems to be an increasingly rare example of common sense within a system which has allowed itself to be influenced by a harmful ideology that has infected almost every part of the state.
Robert Jenrick, the shadow justice secretary, commenting on the new guidance has said that ‘this is nothing short of an inversion of the rule of law’. He is right. But the Conservative party’s hands are far from clean on this issue: the new rules were first drafted under the last Conservative government and the sentencing council is entirely made up of individuals who were appointed by or approved by Conservative ministers.
The sentencing council is just one of the British state’s many ‘independent, non-departmental’ bodies that give every impression of being barely accountable to anybody. Their own website states that they have a statutory requirement merely to ‘consult with parliament’.
Since the furore broke, the Justice Secretary Shabana Mahmood has rightly moved quickly to disavow the new guidelines – and told the sentencing council that she plans to review their powers to determine what role ministers and parliament should play to avoid future debacles. With such action she provides a blueprint for more timorous ministers in dealing with their own department’s unaccountable quangocrats.
Given the speed and bluntness of her response it would appear that the Justice Secretary recognises that changes in the rules of engagement are required. At a minimum, that should include making clear that the sentencing council can be subject to clear political direction from parliament and, as Policy Exchange has previously recommended, that ministers can intervene if the performance of its senior figures is not up to scratch.
By ensuring that the power ultimately sits with those who are democratically elected, and away from the unaccountable quangocracy that has proliferated in recent decades, Shabana Mahmood has an opportunity to turn the tide against the two-tier justice which has become increasingly evident to the public.
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