The Sentencing Council’s Two-Tier Guidelines Failed to Treat People as Individuals

 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....<<<Read More>>>...