This article is taken from the April 2025 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
A Westminster wag once remarked that British political scandals are different because they so often consist of nothing more than the public noticing what is already in the public domain. Outsourcing your wardrobe needs to Lord Alli was entirely within the rules, and since it was all declared on Parliament’s website what was all the fuss about?
Now it is the turn of the Sentencing Council to learn the same lesson. The quango recently released draft guidelines which state that a pre-sentence report, which often leads to a shorter sentence, will “normally be considered necessary” if the offender belongs to an ethnic or religious minority. The binding guidelines must be followed by all judges “unless the court is satisfied that it would be contrary to the interests of justice to do so”.
Fury ensued as the Tories accused the Labour government of “two-tier justice”. The Lord Chancellor, Shabana Mahmood, then tried to outflank the attacks by sending a notably harsh letter to “make clear my displeasure”, threatening to overrule the new guidelines by statute if the Council did not swiftly reverse its decision. For good measure, she also promised to review the Council’s powers. Lord Justice William Davis, the Council’s chairman, fired back with a long, passive-aggressive letter all but threatening to sue Mahmood.
The Sentencing Council’s members must be befuddled, and understandably so. They ran a consultation before promulgating the guidelines, which drew the usual range of responses.
The previous government did not object, and Mahmood’s representative was at the meeting where the draft guidelines were approved, nem. con.
Indeed, the Sentencing Council’s proposals drew part of their inspiration from the independent review “into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System”, commissioned by two Conservative prime ministers and led and written by a certain David Lammy.
What did politicians think addressing racial disparities within the criminal justice system meant, if not introducing measures based on race — or, as it is colloquially known, two-tier justice? The truth is probably that they did not think it through.
It seemed like a good thing to do, and it would have sounded impossibly gammon-like to say otherwise. Until someone bothered to go on the Sentencing Council’s website to check what they were up to.
This brings us to a second question: why does a quango almost no one outside of the legal profession has ever heard of have the power to dictate sentencing policy decisions? Again, it sounded like a good idea at the time. In the old days, judges passed sentence within the confines allowed by law, limited only by appellate courts.
From the 1980s the Court of Appeal issued a few guideline judgments about sentencing for specific types of crimes, and in 1999 the Sentencing Advisory Panel was created to advise the Court of Appeal on the issuance of sentencing guidelines.
Voters are inexplicably attached to the reactionary idea of putting criminals in prisons
In 2003, the Panel began to advise not the Court of Appeal but the new Sentencing Guidelines Council. In 2010 the two were merged into a new Sentencing Council, whose guidelines became binding on all courts.
Each development seemed logical at the time. There was widespread grumbling about inconsistencies in sentencing, so the Court of Appeal gently provided some guidance. As the law became more complex, the Court of Appeal needed help, so an advisory body was created. Then another. Then another. Eventually the sentencing guidelines seemed so normal that Parliament made them binding, effectively surrendering a major part of its legislative powers to a body it established.
I the public complains about the resulting sentences, an elaborate buck-passing can take place. Judges can say that they were bound by the guidelines, the Sentencing Council can say that it has consulted the public about them, and politicians can say that the Sentencing Council is independent from the government.
All of this is perfectly true, but the cumulative end result is a loss of trust in the criminal justice system. Voters, who are inexplicably attached to the reactionary idea of putting criminals in prisons, keep voting for parties that promise to do so, then keep noticing that criminals are not, in fact, getting the sentences they think they should receive. Then they are lectured at by lawyers who ask them condescendingly whether they have read the applicable law and guidelines.
Will the public do the reading? To take an example, the guideline for benefit fraud to be used in the Crown Court has six categories of harm multiplied by three levels of culpability, running to 21 pages when printed. The more observant will notice that sentencing guidelines often prescribe maximum sentences well below what Parliament has allowed.
The public will also need to refer to the Sentencing Code, whose enacting legislation runs to 602 pages and was described unironically at the time as hailing a “new era of simpler sentencing procedure”. No wonder so many people are sympathetic to Shakespeare’s Dick the Butcher’s plan for the reform of the legal profession.
