The lord chancellor has repeated her promise to ‘legislate as necessary’ following the Sentencing Council’s rejection of her request for it to revise new guidelines on the imposition of community and custodial sentences. The guidelines, due to come into effect next week, have prompted a political row over allegations of differential treatment of ethnic groups.
In a letter to the council, dated 20 March but published only today, Shabana Mahmood said she considered ‘that encouraging a judge to request a pre-sentencing report for one named cohort but not another, amounts to differential treatment’.
She added: ‘Pursuing this path also risks eroding public confidence in our justice system. The recent response to the publication of these new guidelines has already shown the considerable depth of feeling this elicits.The appearance of differential treatment before the law is particularly corrosive, and its impact could easily be counterproductive. A Muslim woman, like me, is safer in this country when she is treated no differently to her fellow citizens, regardless of the colour of her skin or the nature of her faith.’
The lord chancellor requested that the ‘full list of cohorts for whom a pre-sentence report will “normally be considered necessary” be removed from the guidance, adding that ‘any disparities between cohorts…are best pursued through policy’.
She added: ‘I have recently commissioned my department to conduct a thorough review of sentencing disparity and its causes.’
If the Sentencing Council was not persuaded to make the change suggested by Mahmood, she recommended ‘at the very least’ the consultation on the guidelines to be reopened ‘in light of the recent public response’.
In his reply, council chair Lord Justice Davis said the guidelines had been ‘the result of many months’ work by the council, adding: ‘The important point is that it involved full public consultation open to any person or organisation with comment to make.’
He said the council met after receiving Mahmood’s letter and ‘agreed that any systemic issue relating to different ethnic groups will be a matter of policy’. He added: ‘Any judge or magistrate required to sentence an offender must to do all that they can to avoid a difference in outcome based on ethnicity. The judge will be better equipped to do that if they have as much information as possible about the offender. The cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed.
‘In our view, providing the sentencing court with information about that cohort could not impinge on whatever policy might be introduced to deal with the underlying problem. Provision of a pre-sentence report in an individual case cannot have damaging consequences for wider policy making.
‘The council respectfully disagreed with the proposition that the list of cohorts in the guideline represented an expression of policy. In providing a list of cohorts, the council was and is only concerned with judges and magistrates being provided with as much information as possible.’
Concluding that the guidelines did not require revision, the judge said the council decided ‘some clarification of the language of the relevant part of the guidelines should be included in the hope that this would correct the widespread misunderstanding which has emerged in the last few weeks’.
Responding in turn, Mahmood said today: ‘I have been clear in my view that these guidelines represent differential treatment, under which someone’s outcomes may be influenced by their race, culture or religion. This is unacceptable, and I formally set out my objections to this in a letter to the Sentencing Council last week. I am extremely disappointed by the council’s response. All options are on the table and I will legislate if necessary.’
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