Let’s imagine a married couple on trial for fraud. They think the same way; they’ve known each other since childhood; and now they have been caught red-handed with fingers firmly in the till.
You’d expect both to receive the same treatment from the courts: a fair, impartial hearing and an appropriate sentence.
But in this imaginary example, one of the thieves is male and white. His wife is, for the sake of argument, Asian.
The difficulty with the new sentencing guidelines, due to come into force on April 1, is that our fraudsters would be treated differently.
Because the wife is both female and from an ethnic minority, the court would be expected to request and consider a pre-sentence report before deciding her punishment: but for her white British husband, it won’t.
Well-meaning this may be, based doubtless on a noble desire to give disadvantaged women a leg up and atone for past prejudice.
It’s not only illogical and unequal, but it can only fuel the sense that we have a two-tier justice system.
Whatever the reality, something that once looked like a feverish conspiracy theory dreamed up by Far-Right keyboard warriors is now laid out in black and white by the foremost sentencing body of England and Wales, the Sentencing Council.
Justice Secretary Shabana Mahmood, to her credit, now seems to accept this: having first declined to intervene citing the Council’s independence. She has asked for the guidance to be withdrawn and rethought.
But this itself has caused controversy. Chairman of the Council, appeal judge Sir William Davis, has announced combatively that the body will ‘take legal advice’ on the extent of Mahmood’s powers, to decide if she has any right to demand revisions.
Shabana Mahmood has known about the proposed changes in favour of differential treatment since they first landed on her desk after her appointment last July. She sidestepped the issue then: it has now come back to bite her
Sir William declared loftily that the Justice Secretary was trying to ‘dictate’ how courts should act in sentencing matters, which amounted to political interference with the judicial process. Strong language, indeed.
Who is right in all this? I suspect at bottom that, whether you like her or not, Shabana Mahmood is.
True, this is a pickle almost entirely of her own making. Not only has she vacillated between saying she can’t interfere with the Council because it is independent, then later calling in strong terms for it to think again. The Justice Secretary was actually a big cause of the trouble.
She has known about the proposed changes in favour of differential treatment since they first landed on her desk after her appointment last July. She sidestepped the issue then: it has now come back to bite her.
The problem is that while sentencing might once have been a backwater best left to the independent judgment of the legal establishment, those days are long gone. Sentencing is now a seriously political matter.
Following the murders of three children at a dance class in Southport and the rioting nationally that ensued, problems of perceived disparity were obvious to anyone who took the trouble to digest the news.
As stiff sentences were handed out to people who had posted inflammatory messages online but committed no actual violence, sometimes stiffer than those meted out to actual rioters, many observers complained that double standards were at work.
It wasn’t only the Southport riots. Left-wing protesters arrested at marches for, say, Black Lives Matter or pro-Palestinian rallies, appeared to be receiving more lenient treatment than those railing against illegal immigration, for instance.
No wonder people began to give the Prime Minister the nickname: ‘Two-Tier Keir’.
This is a pickle almost entirely of Shabana Mahmood’s own making and the Justice Secretary was actually a big cause of the trouble
If this is right, Mahmood’s intervention raises a valid concern. If sentencing is as controversial as this, is it really right that final control over sentencing guidelines should lie with the Sentencing Council?
It, remember, is a quango, an unelected body ultimately responsible to no one.
It may be fine for the Sentencing Council to deal with technical matters, such as ensuring that sentencing is no harsher in some parts of the country than others. But where political controversy steps in, no body of that sort, and certainly not closely connected with the judiciary, should be entrusted with it.
The issue becomes the preserve of politicians, who at least are answerable to the voters.
And the latest guidelines are politically controversial, even if Sir William and his colleagues don’t see it that way and prefer to preserve a rarefied independence.
They stipulate that reports must be compiled before sentencing criminals who fall into specific groups: females, members of ethnic minorities, transgender people, drug addicts, victims of domestic abuse, coercion, exploitation or people trafficking, or whatever – in short, anyone who isn’t a straight, white male.
When guidelines such as these – now rightly questioned by a Cabinet minister – are prepared by a body insulated from political influence, it moves towards government by the unelected.
And ironically it is Labour’s fault. Gordon Brown’s Cabinet approved the introduction of the Sentencing Council in 2010.
There is more to it, too. Like academia, publishing and broadcasting, Britain’s legal establishment has become inexorably more patrician and mistrustful of ordinary voters over the past 15 years, and particularly since Brexit.
It’s easy to think that it actually prefers the country to be run by committees of the great and the good who can be relied on: their view is that voters seem often to propel the wrong people into positions of power.
And this outlook is self-perpetuating. Members of the legal establishment – judges and senior lawyers alike – very often come from a similar pool of thought, and increasingly live and work in something of a metropolitan social bubble.
They tend to know each other and seek each other’s respect and approval. Contrarians and mavericks don’t tend to prosper these days.
Oddly enough, the result is an attitude that almost evokes a hankering for the days when a nod and a wink or a discreetly raised eyebrow from a member of the establishment might suffice to alter government policy.
The problem of this is plain for all to see. The Equal Treatment Bench Book, produced by another genteel legal quango, the Judicial College, opens with the words: ‘Fair treatment is a fundamental principle… a vital judicial responsibility.’
It quotes the judicial oath, sworn by all judges: ‘I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.’
But a two-tier application of the law shatters that oath. Making pre-sentence reports obligatory for some but not others automatically favours those from certain groups.
It is frankly iniquitous that to be transgender, or a drug addict, or to have a physical disability, or to have skin that is not white, might cause you to be treated differently by the courts.
You may not agree with Shabana Mahmood on very much; but she is right here on two counts. One is that different treatment is not ‘doing right to all manner of people’.
The other is that where sentencing gives rise to political controversy, the decision, and the responsibility, should be a politician’s.
- Andrew Tettenborn is Professor of Commercial Law at Swansea University.
