News of judicial leniency towards migrants sparked outrage in the UK last week, as a Pakistani migrant was allowed to stay in the UK after claiming to be gay — despite being convicted of sexual assault for groping a woman.
It is undoubtedly true that some migrants to the UK have “faced imprisonment, torture or rape” prior to fleeing their home country and may suffer higher rates of mental health difficulties, depression and anxiety. It is one of the reasons why the UK granted asylum to more than 50,000 people in the past year. But other than prompting sympathy, and perhaps charity, how should we respond to such facts?
This description of the plight of refugees appears in the Equal Treatment Bench Book, a 352-page guide for judges on how to treat defendants fairly. Published by the Judicial College, the organisation responsible for training the judiciary in England and Wales, the guidance aims to increase understanding of the circumstances of people appearing in courts.
In other words, judges are being given mitigating context for migrants charged with criminal offences, presumably with the expectation that they should be treated with greater leniency than more privileged offenders. So much for “equal treatment”.
The advice in the bench book has come to light as the furore continues over the Sentencing Council’s new guidelines. They recommend that pre-sentencing reports, which increase the likelihood of non-custodial sentences, are required only for those criminals who are from minority groups. It can seem as though equality before the law, once a cherished principle, has been abandoned.
Perhaps we have simply grown complacent. After all, women’s struggles for suffrage, to inherit property, and for equal pay are now the stuff of history lessons. Civil rights campaigns against racial discrimination in employment and housing belong to a pre-decimal era. Even the age of consent for heterosexual and homosexual relationships was equalised a quarter of a century ago.
The luxury of quibbling over microaggressions and pronouns is possible only because legal equality has so long been a given. But as these hard-fought battles have been forgotten, so too it seems has the reason why equality before the law was considered so central to a democratic society.
It is not only a matter of protecting individuals or groups from discrimination or creating the basis for equality of opportunity — vitally important though these things are. The principle of legal equality ensures that the law itself is above bias, discrimination and politics. It is on this basis that the social contract between citizens and the state is forged, and we agree to comply with laws whether we agree with them or not.
Yet for years now, the demand from activists has been to go beyond legal equality and tip the scales in favour of under-represented groups in the name of “fairness” and social justice. This is the very essence of the Equality Act 2010, which enshrines additional legal protections against discrimination, harassment and victimisation for people who have one of nine characteristics including disability, pregnancy, race, religion or belief, and sexual orientation.
Although presently being dialled down, the diversity, equity and inclusion initiatives and workplace training programmes preached “equity” not “equality”; in other words, not the absence of bias but positive discrimination to “level the playing field”.
While such views may be popular in barristers’ chambers, they are not widely accepted by the public as a whole — many of whom continue to view equality as meaning treating people the same regardless of their sex or skin colour. By the same token, the law as a social contract between citizens and the state should mean short shrift for those who were never citizens in the first place.
This is why news of judicial leniency towards migrants sparks outrage. Just last week we learnt of a Pakistani migrant allowed to stay in the UK after claiming to be gay — despite being convicted of sexual assault for groping a woman.
Myriad similar stories include a woman whose deportation to Grenada was delayed after she argued that her husband did not like Caribbean food and would struggle with the heat; a Pakistani father jailed for child sex offences who avoided deportation as it would have been “unduly harsh” on his own children; and an Albanian criminal who successfully argued for the right to stay in Britain in part because his son does not like foreign chicken nuggets.
Meanwhile, very severe, sometimes custodial, sentences were handed down to people who — caught up in the maelstrom of last summer’s riots — posted disturbing, racist, threatening or simply downright unpleasant content on social media. Julie Sweeney, a 53-year-old woman who lived a “quiet, sheltered life” as primary carer for her husband, was jailed for 15 months after she posted a comment on Facebook that read: “Blow the mosque up with the adults in it.”
Sweeney typed despicable words, but her entirely disproportionate punishment is destined to be forever compared with offenders like the former BBC presenter Huw Edwards, who was spared jail despite pleading guilty to possessing indecent images of children, and Mike Amesbury, who received a suspended sentence after admitting assaulting a constituent while he was the Labour MP for Runcorn & Helsby.
It increasingly appears as though the courtroom is not sacrosanct but an arena for judicial activism. Such perceptions matter. The law must not seem to bend to the views of individual judges. The appearance of bias undermines faith in our justice system. This comes at a high cost. We cannot expect people to respect the rule of law if the legal system itself appears to be discriminatory.