Sentencing: what next?
Justice secretary to see Sentencing Council as Conservatives ramp up pressure
The justice secretary is to meet the Sentencing Council later this week, she announced yesterday. Shabana Mahmood promised MPs that she would “consider its role and powers”.
She told her Conservative shadow Robert Jenrick:
If I need to legislate, I will do so, but I will ensure that whatever changes I bring forward are workable and deliver the fair justice system that we all need and deserve — one that his government did not deliver.
This seems to be a slight softening of Mahmood’s tone compared with what I described last week as her “overreaction” to Jenrick’s earlier taunting. The opposition justice spokesman had suggested that a new guideline instructed sentencers to impose more lenient sentences on those from ethnic minorities than on white offenders, a claim that Sir William Davis, chair of the Sentencing Council, described this week as “completely wrong”.
But Jenrick kept up the pressure in parliament yesterday by proposing new legislation. His Sentencing Council (Powers of Secretary of State) Bill has not yet been published but its long title indicates that it would prevent the Sentencing Council from issuing sentencing guidelines without the consent of the secretary of state. It would also give the justice secretary power to amend sentencing guidelines before they were issued by the council.
Jenrick’s bill is pure party politics and has no chance of becoming law. What Mahmood must now decide is whether to rise above the political fray, put the spat behind her and respect the current separation of powers between the government, parliament and the courts.
Davis, who sits as an appeal judge as well as chairing the Sentencing Council, emphasised judicial independence in a letter he sent Mahmood on Monday.
He told the justice secretary:
All judges and magistrates are required to apply any relevant guideline unless the interests of justice require otherwise. In practice, the guidelines form the backbone of every sentencing decision made throughout England and Wales.
There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority. The council preserves the critical constitutional position of the independent judiciary in relation to sentencing.
In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by ministers of the crown, this principle would be breached.
Rule of law
Would failure to respect that principle amount a breach of the rule of law? With impeccable timing, the House of Lords constitution committee has just set itself the task of finding out. Yesterday, it posed what generations of students will recognise as a classic series of exam questions.
It said:
The committee welcomes written submissions on any aspect of this topic, and particularly on the following questions. Witnesses are encouraged to include examples. It is not necessary to answer all the questions.
Defining the rule of law
What are the components of the rule of law?
i. Why is the rule of law an important tenet of the UK constitution?
ii. Which factors can be used to assess the health of the rule of law?
iii. Is useful assistance to be gained from definitions of the rule of law used by international or supranational organisations; or in the legal systems of other countries?
How well is the rule of law understood by politicians and the public?
i. Has the rule of law been confused with the rule of lawyers?
The operation of the rule of law
What threatens the effective operation of the rule of law in the UK?
What is parliament’s role in upholding the rule of law? Is it performing this role well, and how could it be improved?
i. How can parliament improve its legislating to better facilitate the rule of law?
What is the government’s role in upholding the rule of law? Is it performing this role well and how could it be improved?
What is the role of the judiciary in upholding the rule of law? Is it performing this role well and how could it be improved?
Is there a role for the public in upholding the rule of law and international influence?
i. Is there a greater role for education, the media and civic society in promoting the rule of law?
How important is the rule of law for the UK’s economy?
What threatens the effective operation of the rule of law globally?
i. Which countries do you think are leaders in adherence to the rule of law, and why is this the case?
ii. How effective is the UK as an advocate for the rule of law on the international stage? How could this be improved?
Candidates should not write on both sides of the paper. Indeed, they should not write their answers on paper at all. The exam closes on 15 April.
While I have increasing contempt for Jenrick who has decided to go full Trump and decide that anything that does not adhere to his views is the enemy, and I continue to believe it was unwise for this spat to have occurred (given that MoJ representation is at the Sentencing Council), I do not agree with Davis LJ that this breaches the Rule of Law. The courts are increasingly trying to define the rule of law themselves and under the UK system (as distinct, for example, to the USA) it doesn't follow that they have the right. The Crown takes precedence, with the judges getting their power from that.
In an ideal world, the HoL inquiry would lead to a rewriting of the CRA 2005 to set out what the rule of law is, what the responsibilities of each branch are (and, for example, I believe there is a responsibility on Parliament and not just the government in this regard) and how it is assessed. If that were to happen, I do not believe that providing the government with a veto on guidance would in any way conflict with the Rule of Law. Davis LJ is correct in saying Parliament should not say, "all offenders for X offence must get Y punishment and only Y punishment", but to say, "we do not agree that the *guidance* you publish is correct, think again" is not doing that. Parliament sets the maximum sentence and it is perfectly reasonable for it to decide what the aggregating and mitigating factors are, what is harm etc. Indeed, it does this with the murder tariffs. The individual sentence is the decision of the judges, but it does not mean that only the judges can decide the guidance on how sentences are constructed. A veto could be legitimate so long as it is done transparently, i.e. the Lord Chancellor should make a statement in Parliament saying, "I have vetoed this because of x, y and z". Parliament could then vote to say the government was wrong if it wished. That would be perfectly compatible with the Rule of Law, and judges need to recognise that they do not operate in a vacuum and looking enviously at the powers the US judges have neglects the fact that their constitution is very different.
I think the view of most of the general public is that any offender who has not been imprisoned has been “allowed to walk free.” Politicians, especially those in opposition, like to make headlines by playing to that gallery.
Sentencers, however, are required to take a different approach. For them, a custodial sentence is a last resort to be imposed when only custody will do, and then only for the shortest period justified by the seriousness of the offence.
The common interests of sentencers and the public lies in understanding what works. What will deter the offender from reoffending. And that is where pre-sentence reports can principally add value. A probation officer, properly resourced, can inform sentencing so that a balance can be reached to try to achieve the various purposes of sentencing.