New guidance sent to UK judges late last month said they should consider the background of members of ethnic and religious minorities when deciding whether to impose a custodial or community sentence.
The guidelines were issued by the Sentencing Council, an independent body that provides guidance for judges and courts, and were to come into effect on April 1. The guidelines relate to the pre-sentence report drawn up when an offender is from a cohort that judges and courts may deem relevant when considering a sentence. The recommendation advises a pre-sentence report be produced for offenders from specific cohorts such as ethnic, cultural and religious minorities, as well as for transgender individuals, women and young offenders.
The guidance says a pre-sentence report can be “pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence”.
The Sentencing Council is an independent body that provides guidance for judges and courts to ensure consistency and transparency across the country. In a letter to Mahmood explaining its decision, the council said it had rejected her plea because “no errors were made” in the process of drafting the guidelines, which included a full consultation period.
It said responses to the consultation, which was carried out between November 2023 and February 2024, were “generally supportive” of the proposal to add minority groups to the list of offenders requiring a pre-sentence report, and noted that Mahmood had not responded herself in her role as shadow justice secretary at the time.
They prompted claims of a “two-tier” sentencing policy that favours ethnic minorities — from politicians and, unusually, a judicial revolt at being ‘told what to do’. The council went ahead with the changes despite being told by magistrates during the consultation that the guidance was “biased and conflicts with equality in sentencing”.
Shabana Mahmood, the justice secretary, threatened to overrule the Sentencing Council if it refused to reverse the guidelines “as soon as possible”.
She said she would change the law through the Sentencing Bill later this year “if necessary”, as she wrote to Lord Justice William Davis, the council’s chairman, to register her “displeasure” at the policy. Davis rejected both her pleas, insisting that the new guidelines were the result of “many months’ work by members and officials of the council”.
In the letter explaining its decision, Davis said a judge or magistrate “must do all that they can to avoid a difference in outcome based on ethnicity”. He said the judge will be “better equipped to do that if they have as much information as possible about the offender” because the cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are “less well informed”.
Then, in a swift move, emergency law was passed to stop the guidelines in their tracks.
The following three “essays”, drawn from The Times reports of these events as they unfolded last month, make for very thought-provoking reading. So many thoughts. If this is the attitude back in the home country — the fountain of our common law — is it finally time to recognise once and for all that we in the Pacific have followed a more enlightened Pacific path to justice? Can judges ‘revolt’ legitimately at unpopular law? Is the myth of judicial independence a sufficient justification for judicial legitimacy? Is Dicey’s Day done? What really creates trust in the law, judges, and our rule of law institutions? Are our sentencing policies and law dialled to the right settings?
Pull up a chair, have a read. What do you think? Let us know.