Sentencing Council: An Insult to the Rule of Law?
05/04/25
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LORD CHANCELLOR SHABANA MAHMOOD, IMAGE: RICHARD TOWNSHEND
Few areas of criminal justice attract the level of media scrutiny, political frenzy and sporadic popular outrage as the sentencing of offenders. In recent weeks, media sources such as Sky News, BBC and newspapers including the Daily Mail and Guardian have picked up on the recent guidelines established by the Sentencing Council. They have caused such an outrage that even the Justice Secretary (Lord Chancellor), Shabana Mahmood, had to state that there would “never be a two-tier sentencing approach under my watch”.
Interestingly, the rule of law has come up here as a topic not only with the guidelines being defended by the Sentencing Council for upholding the rule of law in a letter to the government but also by reflecting on the words of Dicey: “'every man, whatever be his rank or condition, is subject to the ordinary law of the realm”.
To give the Sentencing Council some context, traditionally, it was the Court of Appeal which issued guideline judgements for other courts to follow; this system was drastically altered in 1998. The Crime and Disorder Act 1998 implemented the Sentencing Advisory Panel to assist the courts in establishing judgement guidelines, but these were merely advisory. This was not enough, however; the Sentencing Guidelines Council was established by the Criminal Justice Act 2003, which drafted guidelines for all courts to ‘have regard to’ being made up of professionals from legal and policing backgrounds. Ultimately, we ended up with the Sentencing Council. The Coroners and Justice Act 2009 put our current institution into service and it is tasked with creating guidelines that every court must follow unless it is against the interests of justice to do so.
The issue, in this case, is that the new guidelines would have a clear bias against white men. This is because of the guidelines requiring judges to consult the pre-sentencing report giving details of an offender’s personal life before sentencing alongside their motivations and background. This becomes problematic, however, when it is only applied for people of an “ethnic or religious minority, as well as young adults, abuse survivors and pregnant women”. These can influence sentences, thereby establishing the potential for a two-tier justice system, as has been in the headlines by enabling the courts to punish individuals more harshly due to their ethnic background.
These guidelines have palpably faced opposition due to the distaste felt towards them, with Mahmood receiving support from other notable politicians, including Starmer, to combat the guidelines. Initially, the Lord Chancellor wrote to the chair of the council, Lord Justice Davis, to call for the change to be scrapped. Davis, a senior judge with experience working as a circuit judge (criminal courts) responded by claiming the guidelines do not “require supervision” and were merely a “widespread misunderstanding”. He argued that these new rules were only a matter for better informing judges, being that the “cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed”.
CHAIRMAN OF THE SENTENCING COUNCIL, WILLIAM DAVIS, IMAGE: WHALE
The clarification from Davis was not enough, however and with support from Starmer and other MPs, Mahmood introduced the Sentencing Guidelines (Pre-sentence Reports) Bill on Tuesday morning. This passed its first reading and is intended to prevent sentencing guidelines from being able to single out specific cohorts of individuals to prevent a two-tier justice system. The Sentencing Council have for now suspended the new guidance pending the new legislation alongside the government indicating intent to review sentencing and the role of the council in the future.
It stands clear that there is currently opposition to what many have termed to be two-tier justice. It should be noted that the guidelines did have their supporters. On Tuesday morning, the Guardian released an article stating that senior legal figures called the intervention by Mahmood “dangerous” and a “deliberate step backwards”. This is claimed by the Society of Black Lawyers, who argue that there has already been two-tier policing by “racist” institutions for 500 years and that these guidelines were a step towards “equal treatment”. Keir Monteith, a respected KC, also voiced support for the guidelines: “It is not ‘two-tier’ justice because the starting point of the dropped guidelines was that everyone should get a pre-sentencing report”. Critics of Mahmood can be seen in other areas, too. Janey Starling, the co-director of gender justice campaign group Level Up, called Mahmood’s actions “a populist pantomime” in an article for the Guardian.
It is clear that the general opposition to Mahmood regarding these guidelines thereby rests on the idea that they were not a two-tier system at all and that this is simply a narrative which has been pushed to prevent tools for achieving greater equality in justice. This is not the only argument she has faced however, Diane Abbott of Mahmood’s own party and the first black female MP put forward the idea that it is absurd to think that “our judges are so weak-minded as to be affected by what are guidelines in relation to how they sentence black and brown defendants”. Indeed, it should be noted that judges in this country, even more so than others, require a wealth of experience for considered judgment. The youngest criminal judge appointed was Anna Midgley as a recorder in 2016 (not considering the appointment of Carlton Williams in immigration tribunals), with this still being junior to the general circuit judges who typically preside over our criminal trials. These judges are typically at least in their 50s and have received appointments over their successful legal backgrounds, supporting Abbott’s argument.
DIANE ABBOTT ATTENDING AN ANTI-RACISM RALLY, IMAGE: GARRY KNIGHT
That, therefore, leaves us with the question of whether these guidelines should or should not be considered an attack on the rule of law. This would seem to break down into your personal view on what these guidelines achieved. Would you consider them to have been nothing more than a blatant two-tier system of justice geared towards disproportionately punishing white men? This hardly promotes equality under the law. Otherwise, would you perhaps consider that these guidelines were indeed a tool and that they made sure justice was properly administered to achieve equality in a system which has failed minorities for centuries? Perhaps at this level, we would consider it to be more within the scope of the rule of law for these guidelines to be implemented. Maybe even an alternative viewpoint would land you somewhere in the middle of the view that these guidelines had the right idea of enabling equality but were carried out in the wrong way. Perhaps in the future, guidelines could be imposed of a similar nature but not targeting any specific cohort of people, and in that way, a two-tier system is avoided alongside properly informing judges of all cases they come across.
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