There has been considerable uproar recently over an issue that rarely attracts headlines: sentencing guidelines issued by the Sentencing Council for England and Wales. Large sections of both the public and the political establishment — including, notably, the Justice Minister, Shabana Mahmood — have voiced concern that the new rules risk creating a ‘two-tier’ justice system. As the Lord Chancellor noted, “These guidelines create a justice system where outcomes could be influenced by race, culture or religion. This differential treatment is unacceptable – equality before the law is the backbone of public confidence in our justice system.”
The guidelines which were set to take effect on April 1st stated that a pre-sentence report “will normally be considered necessary if the offender belongs to one (or more) of cohorts” such as: ethnic minority or faith minority communities; female; pregnant or past-natal; transgender etc. The council’s rationale was to address and eliminate disparities, i.e., an alleged sentence gap, between different ethnicities – a strange idea once we realise that a sentence applies to an individual, not to a group. Following heated discussions, the Sentencing Council met with the Justice Secretary. It was agreed upon that the guidelines would not be brought in while there was a “draft bill due for imminent introduction”. A potential political, and perhaps constitutional, crisis over a core matter of state decision-making was thus averted, despite the issue being relatively minor. The Justice Minister stressed that she was “grateful” to the Sentencing Council for delaying the implementation of its new guidelines.
While public discussion has rightly focused on the issue of two-tier justice, I would like to draw attention to a separate but closely related issue. Even more concerning than the default requirement for a pre-sentence report — which typically brings mitigating circumstances to light — for some identifiable groups but not for large parts of the population, notably white men, is the underlying policy rationale: the notion that mere membership in a reference class (or “cohort”, in the Sentencing Council’s terminology) could trigger legal consequences. Let me explain why.
On Reference Classes and Individuals
From Aristotle who noted that “praise and blame attach only to voluntary actions” over Kant who defined autonomy as the capacity to decide for oneself, to contemporary philosophers who indefatigably emphasise the fundamental value of autonomy in modern societies, personal autonomy has occupied centre stage in Western philosophy and polity. Arguably, personal autonomy and human dignity can and should be regarded as axiomatic (moral) truths. For example R.A. Dahl (Democracy and Its Critics, 1989), among other democratic theorists, talks about the “presumption of autonomy”: “To accept the idea of personal autonomy among adults, then, is to establish a presumption that in making individual or collective choices each adult ought to be treated — for purposes of making decisions — as the proper judge of his or her own interests” – which articulates humans as rational agents with the capacity to make, and act upon, judgments for which they (and no one else) are to be held responsible. As Aristotle expressed this axiomatic truth a few millennia ago: “To distinguish the voluntary and the involuntary is presumably necessary for those who are studying the nature of virtue, and useful also for legislators with a view to the assigning both of honours and of punishments” (Aristotle, Nicomachean Ethics, Book III, Chapter I, emphasis added).
It is thus unsurprising that the idea of reducing a human being to a handful of group-mediated traits — an appealing notion for proponents of identity politics — is not only antithetical to core legal principles in Western legal orders; it is, in effect, an attempt to strip complex phenomena to the bone and reduce them to a set of collective traits. Yet, just as the complexity of physical phenomena exceeds that of any linear equation, the normative architecture of the individual — especially the legally protected dignity of the person — resists all reductionist approaches. Heisenberg’s wistful dictum that “the equation knows best” may hold in the realm of nuclear physics, but legal adjudication in Western legal systems is not that context. For example, stop-and-searching a citizen solely on the basis of his or her membership in a reference class — or even (not) convicting a defendant in a criminal court because of a specific trait — does not fail or succeed from the point of view of logicality. Insurance companies routinely rely on non-individualised statistical scores and do so with remarkable financial success. However, within the procedural architecture of Western legal orders, epistemic considerations must be filtered and validated through a framework of constitutional rights, legal and evidential principles, and foundational values. Those values and principles, in every modern Western legal system that I am aware of, are anthropocentric — i.e., grounded in the individual. They are thus not group-mediated.
On a more practical level, the Grand Chamber of the Strasbourg Court has held that “the notion of personal autonomy is an important principle underlying the interpretation of the Convention guarantees”. This notion must therefore be understood as “an essential corollary of the individual’s freedom of choice” (Sørensen & Rasmussen v Denmark). Given that personal autonomy and human dignity — two concepts that go hand in hand (see e.g. Avram and Others v. Moldova)— are central values in Western anthropocentric legal orders, it becomes ethically and legally untenable to regard a human being merely as the embodiment of a set of social traits. Even more troubling is the prospect of holding someone (less) responsible not for his or her own actions or omissions, but for those of a group (cohort) to which he or she belongs. Similarly, it is deeply problematic to order a pre-sentence report based on the offender’s membership in a reference group. There is, I submit, a specific-evidence-requirement that is closely tied to the fundamental concept of judicial discretion — an intrinsic feature of the legal order.
In modern Western legal orders, the system of adjudication is by no means an exercise in identity politics. Human dignity, personal autonomy, reasonableness etc. are normative features, not debatable political claims. The same features give thrust to what the courts around the globe call the ‘dissimilarities approach’ which focuses on what distinguishes the members of any reference class, not on an alleged shared identity that unites them. As the US American Judge Kozinski put it with regards to the perhaps most expansive class action in legal history where roughly one and a half million women alleged gender discrimination in pay and promotion policies and practices in Walmart stores:
The half million members of the majority’s approved class held a multitude of jobs, at different levels of… hierarchy, for variable lengths of time… with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. … Some thrived while others did poorly. They have little in common but their sex and this lawsuit. (Dukes v. Wal-Mart Stores, Inc., Case Nos. 04-16688 and 04-16720, 603 F. 3d, at 652, per Chief Judge Kozinski.)
As the German philosopher Friedrich Nietzsche (The Gay Science, § 128) put it pithily: “Seeing things as similar and making things the same is the sign of weak eyes.” The Austrian-British philosopher Ludwig Wittgenstein provided a similar diagnosis a while ago. He remarked that our “craving for generality” is a synonym of “the contemptuous attitude towards the particular case”. Similar to philosophers — i.e., Wittgenstein’s target of criticism — the Sentencing Council too adopted the methodology of science (with an identity politics twist) and felt “irresistibly tempted to ask and answer [questions] in the way science does”, i.e., with aspirations to generality. Just that craving, Wittgenstein remarked, lead us “into complete darkness” (L. Wittgenstein, The Blue Book).
Criminal Justice or Social Justice?
Whether we could reduce a legal decision to an individual’s membership in a reference class is ultimately a matter of policy. In other words, societies could choose to base such decisions on statistical data or collective traits — but only if they were prepared to embrace collectivist or otherwise non-individualist values. High-ranking officers of the Soviet regime concisely summed up this idea: “We are not fighting against single individuals,” writes Martin Latsis, who headed the Ukrainian secret communist police (Cheka).
We are exterminating the bourgeoisie as a class. It is not necessary during the interrogation to look for evidence proving that the accused opposed the Soviets by word or action. The first question you should ask him is what class does he belong to, what is his origin, his education and his profession. These are the questions that will determine the fate of the accused. Such is the sense and essence of red terror. (In the newspaper Red Terror, November 1st 1918, emphasis added.)
What is more, it is no mere linguistic coincidence that the closely related term ‘fascism’ derives from the Italian ‘fascio’, meaning ‘to bundle’. By enacting what we have called here the specific (individualised) evidence rule, Western legal orders — particularly in the context of criminal law — choose not to bundle individuals together, but to treat them with dignity, on a case-by-case basis. Each decision, including whether to order a pre-sentence report, should thus be grounded in the particular facts of the case.
The requirement of ‘specific evidence’ and ‘individualised justice’ is not merely another procedural feature of modern legal orders. It is, in essence, the bulwark against bundled or automated forms of decision-making that may produce legal or otherwise significant consequences for individuals. Group-to-individual inferences undermine core tenets of liberal legal systems, including human dignity and personal autonomy. The anthropocentric approach in law — both generally and in sentencing specifically — aims to ensure that the exercise of discretion is not displaced by group-mediated methods or, notably, by the influence of identity politics. Legal decision-making simply cannot be reduced to collective traits, as envisaged by proponents of so-called social justice. As W.C. Salmon (1974) put it pithily, “God would be unable to construct an inductive-statistical explanation of any physical event… not as a limitation of His power but as a reflection of His omniscience” (28 Synthese, 1974, pp. 165-169). For an omniscient God would be able to detect the tiniest difference between seemingly similar cases and classify them separately.
Sentencing in England and Wales, by adhering to the political and constitutional principles outlined above, cannot: a) fall prey to any form of anthropological essentialism in which individuals are reduced to mere intersections of statistical traits (as postulated by modern identity politics), and b) wilfully ignore the inherent heterogeneity within any group. While it is obvious that no court judgment can or should capture every minute detail, a deliberate and entirely avoidable disregard for context or for the unique characteristics of the offender is deeply troubling.
Whereas singularities pose deep challenges for scientific theories — and are particularly inconvenient for proponents of identity politics — the sheer complexity of criminal cases defies meaningful generalisation. As Lord Hoffmann once observed: “The slightest movement of the kaleidoscope of facts creates a new pattern which must be examined afresh” (91 Law Quarterly Review, 1975, pp. 193-206).
In summary, any one-size-fits-all approach to decision-making — whether in policing, sentencing or probation — raises serious concerns about the legitimacy and lawfulness of the resulting decisions or verdicts. It is time to move past such reductive approaches and tackle the difficult task of decision-making in sentencing without resorting to oversimplifying or authoritarian methods that seek to assign mitigating or aggravating circumstances based on an offender’s shared characteristics with others.
The new Bill currently making its way through Parliament seeks to make provisions regarding sentencing guidelines in relation to pre-sentence reports.
It is crucial to remember that sentencing including an order for a pre-sentence-report must be based on individualised evidence. Criminal justice and social justice are distinct, and indeed antithetical, concepts. Mind the gap!
Dr Kyriakos N. Kotsoglou is an Associate Professor of Law and Deputy Director of the Centre for Evidence and Criminal Justice Studies at Northumbria Law School. A longer version of this article can be found here. You can follow his X account here.
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