The row between the Secretary of State for Justice, Shabana Mahmood and the Sentencing Council shows no sign of abating. Mahmood took a robust and correct stand against anything that encourages two tier justice. It is important she doesn’t back down.
Lord Justice Davis, Chair of the Sentencing Council, has produced a detailed defence of the whole exercise. In the process, he has vividly demonstrated the problems Ministers face with unaccountable bodies that are reluctant to accept the political nature of the guidance they are issuing. Astonishingly, he declares he will take legal advice before deciding whether to act on the Justice Secretary’s clear instruction to reconsider the guidelines
LJ Davis’ letter makes some disingenuous points about the “two tier” critique. He argues that treating different protected groups differently in terms of requiring Pre Sentencing Reports (more or less compulsory for protected groups, optional for others) is not the same as requiring more lenient sentences for protected groups. It’s not a direct instruction but greater use of these reports is clearly intended in the round to lead to lower sentencing. Indeed this is the whole purpose of the guidelines.
It’s surely incumbent on sentencing specialists to get to the bottom of what is actually causing these disparities
The guidelines seem motivated by a simple assumption that disparate outcomes in sentencing must automatically be evidence of discrimination, justifying active measures to redress this. But he himself accepts that the reasons for the disparate outcomes are unclear. One possible reason is that white offenders seem more ready to plead guilty and get more lenient sentences as a result. It’s surely incumbent on sentencing specialists to get to the bottom of what is actually causing these disparities rather than assuming discrimination and recommending highly controversial interventions in response.
It’s perhaps understandable that Lord Justice Davis has been put out by the severity of the push back. He details the elaborate process these guidelines have been through, both under this Government and its predecessor. The current Conservative Shadow Justice Secretary has roundly condemned the guidelines — but a previous Conservative Minister appears to have waved them through. Shabana Mahmood’s own officials seem to have been content with the guidelines just a few days ago, while LJ Davis outlines a whole series of other agencies that have been involved. He also points to the overwhelming support for the draft guidelines during the consultation process.
There can’t be any doubt now about how controversial the guidelines actually are. Both LJ Davis and Shabana Mahmood ought now to be thinking about how the system for generating advice in this area has become such an echo chamber that the controversy the guidelines attracted seems to have come as a complete surprise to those involved.
LJ Davis’ letter repeatedly refers to the “Equal Treatment Bench Book” to back the Council’s approach. The Bench Book is supposed to help ensure judicial processes recognise the particular needs and contexts of minority communities. Policy Exchange has long been sceptical about the Bench Book, and the degree of politicisation involved. Following criticism, the Bench Book’s chapter on “gender” has now been thoroughly recast — but significant problems remain elsewhere within its pages.
The Bench Book still seems driven by a particular ideological standpoint, led by practitioners with a long commitment to “diversity and inclusion” initiatives. These include the highly controversial district judge Tan Ikram, whose differential sentencing, for example imprisoning a police officer for WhatsApp messages while sparing the woman who threw a milkshake over Nigel Farage and the two women who displayed paraglider sticker shortly after the attack on Israel, has created a whole controversy of its own about “two tier” justice.
Policy Exchange papers like “Getting a Grip on the System” have outlined the problems throughout government with group think both among officials and in advisory groups. Advisory groups need proper diversity of thought. But most importantly, Ministers need to be able to set proper direction for all arms length bodies.
In the meantime, LJ Davis’ letter is a direct challenge to the legitimacy of Ministerial authority. This is not about Ministers wanting to influence individual cases. The guidelines are at heart highly political. They infer reasons for disparities and make controversial recommendations to put a thumb on the scale. The issue should have been picked up earlier and stopped — but the point is the Secretary of State has now made her position clear, and the Council needs to think very carefully before defying it, or its own future should come into question.
This is a case study for Ministers’ determination to deliver their mandate, including asserting their proper democratic authority over arms length bodies. Policy Exchange’s report “Getting a Grip on the System” sets out what Ministers need to do in this area. The Justice Secretary has shown real determination in this area — both on this issue and in her commitment to getting new leadership at the Criminal Cases Review Commission. She has shown Ministers can set a clear strategic direction if they choose. She has made it clear she is prepared to legislate if her concerns are not addressed – and this is a commitment she should follow through on.
