Mahmood rebuffed

Sentencing Council tells justice secretary its new guideline will not be revised

The Sentencing Council has rejected a request from the justice secretary to revise a new sentencing guideline on community and custodial sentences that take effect next week. However, it will clarify the language used “in the hope that this would correct the widespread misunderstanding which has emerged in the last few weeks”. It will also publish an explanatory statement on its website.

The guideline published on 5 March said that pre-sentence reports would “normally be considered necessary if the offender belongs to one (or more) of the following cohorts” — which included “those from an ethnic minority, cultural minority, and/or faith minority community.”

In a letter dated 20 March but published today, Mahmood told Sir William Davis, chair of the Sentencing Council, that she considered this to be a question of policy. Ministers were opposed to differential treatment on the basis of race or ethnicity in the courts. The justice secretary asked the council to remove from the new guideline the full list of cohorts for which a pre-sentence report would normally be considered necessary.

Sir William Davis, chair of the Sentencing Council and a lord justice of appeal

In his reply yesterday, Davis said the Sentencing Council had met this week. It took the view that this was not a matter of policy. “Provision of a pre-sentence report in an individual case cannot have damaging consequences for wider policy making,” the council concluded.

Davis added:

If the imposition guideline did make a custodial sentence less likely for someone from an ethnic minority simply by reference to their ethnicity, the guideline would be open to proper criticism. That is not what the guideline does.

If it did, one might expect that it would have been identified by the then lord chancellor or the [Commons] justice committee as then constituted. They would have objected in unequivocal terms. As I have explained, a pre-sentence report of itself does not make a custodial sentence less likely. It provides the sentencing court with information. The list of cohorts relates to offenders about whom a court is likely to require as much information as possible.

It is important to note the following matters. First, the guideline does not instruct or mandate judges and magistrates to request a pre-sentence report. A sentencing court may decide that a pre-sentence report will not be necessary in relation to an offender within a particular cohort. Second, the guideline is explicit. The list of cohorts is non-exhaustive. A pre-sentence report may be necessary for an offender outside the list. Third, all of the other cohorts are silent as to ethnicity. Those cohorts concern characteristics of the offender unaffected by their ethnicity…

Were our guideline to ignore the rule of law, that would seriously diminish confidence in the sentencing process. As I hope you will agree, no part of the guideline is a set of rules which ignore the rule of law. In relation to sentencing, the rule of law requires that all offenders are treated fairly and justly by judges and magistrates who are fully informed about the offences, the effect on the victims and the offenders. The section of the guideline relating to pre-sentence reports is directed to the issue of information about offenders, no more and no less.

For all of these reasons the council concluded that the guideline did not require revision.

Comment

It’s clear that the council — which by law has a majority of judicial members — is determined not to give in to political pressure or ill-informed criticism. But the courteous tone of the correspondence and the references to comments made by the shadow justice secretary Robert Jenrick suggest that the pressure and the criticism rejected by the council come not so much from the government as from the opposition.