The battle between the Lord Chancellor and the Sentencing Council over ‘two tier’ sentencing guidelines escalated this morning, with the publication of two letters. The first, sent by Lord Chancellor Shabana Mahmood a week ago, makes clear, powerful arguments about principle. She explains that she considers this to be a “matter of policy”, which should be determined by those who are “accountable to the public, both in Parliament and at the ballot”. The Lord Chancellor remarks that the disparity in sentencing outcomes is “real” but that “it is the responsibility of Government”.
She goes on to demonstrate that she understands precisely how toxic and dangerous the Sentencing Council’s approach is. The Council is supposed to “promote public confidence in the criminal justice system”, but their new guidelines are “particularly corrosive” in giving the “appearance of differential treatment before the law”. The Lord Chancellor is wise to identify this risk. If members of the majority ethnic group in the UK come to believe that the justice system is biased against them the consequences for public order and the safety of minority groups could be very grave.
The Lord Chancellor makes it very clear that she supports Pre Sentence Reports (PSRs) being used in every case where they are useful, and is creating more capacity in the probation service towards this end. This is also wise. Judges should have as much information as possible to inform their sentencing decisions. If someone is a sole carer for a child or vulnerable adult, then the court should be made aware of that before deciding whether a prison sentence is appropriate. Similarly, issues around coercion or mental health may affect how a judge sentences a guilty person.
The issue is that the Sentencing Council is seeking to make these PSRs available disproportionately to some groups it has identified as being at risk, while ignoring groups such as adults who’ve been in care who make up 25% of all prisoners.
All the Lord Chancellor asked of the Sentencing Council was that it remove the list of specific ethnic, cultural and religious groups who should receive a PSR as a matter of course.
It has taken Lord Justice William Davis, Chairman of the Sentencing Council, a week to write another of his excessively long, procedure-obsessed letters. I’ve read it so you don’t have to. He makes a cleverly-worded but misleading claim about PSRs, asserting that “frequently the information provided” will make people more likely to go to jail. While I’m sure that in some cases this does happen, the Government’s own analysis conducted in 2023 makes it clear that people who receive a full PSR are less likely to go to prison as a result.
Three pages in, Davis explains that he considers “no errors were made”, and “the Council could see no basis on which it should revise the guideline because of the process”. Again, the judge seems to think that a decision must be good if the appropriate procedure has been followed.
He makes no effort to engage with the Lord Chancellor’s excellent points about public confidence in the justice system. Perhaps he thinks such grubby matters as public opinion are beneath him and the Council. Davis concludes by making it clear that the Council is not going to budge one inch.
The Lord Chancellor has said this morning that she is “extremely disappointed by the Council’s response. All options are on the table and I will legislate if necessary”. She’s right to be disappointed, and she would be right to legislate. These rules come into force in a week. The Sentencing Council has made it clear that it has no regard for the Lord Chancellor’s office, the principles of democratic accountability or public opinion.
We need and deserve a justice system which serves the democratic will, not one which is forced upon us by unaccountable judges. I hope the Lord Chancellor legislates immediately to bring the Sentencing Council to heel.
David Shipley has sold fork lift trucks, worked in corporate finance, produced a film and served a prison sentence for committing fraud. He now campaigns for prison reform and works as a prison inspector. You can find his website here.
Stop Press: Keir Starmer has now confirmed he is ready to change the law to block the two-tier sentencing rules, with Downing Street saying on Friday that “all options are on the table”, including emergency legislation. The spokesman added that Mahmood is “reviewing the role and responsibility of the Sentencing Council”, and did not rule out the body being abolished entirely if the matter is not resolved.
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