From being a socialist orientated student to a conservative who believes that capitalism must be controlled there comes a time when the inevitable choice arises between government and the law. Before the dreadful day of 7th October 2023 the people of Israel faced that very dilemma. It is a problem there still to be solved. At grassroots that is the situation currently with the Sentencing Council at loggerheads with the Justice Secretary. Government makes the law which includes a range of sentences for every offence. As can be noted from recent events maximum sentences for what many consider the most heinous offending seem to be in short supply at the top end and rarely applied at the lower, eg shoplifting, car theft or burglary where perhaps the reluctance of police to investigate is much of the problem.
Two tier policing became the catchphrase for the ineptitude of initially the Metropolitan Police in allowing public support for a proscribed terrorist organisation and breaches of the Public Order Act to go unpunished for over a year yet simultaneously being over officious in clamping down hard on non violent suspected hate crime.
Two tier sentencing has been the phrase now employed to describe the Sentencing Council`s intention to rectify a problem others say does not exist. The controversy centres around supposedly different criteria for those facing custody from the crown court depending on their ethnic, religious or cultural minority status. Even disclosure of being transgender is included as "cultural minority". The chairman of the council, Lord Justice William Davis, has stated that guidance must not be dictated to judges by ministers. A leading solicitor has written publicly that those from "ethnic minorities" are more likely to be arrested, charged and convicted than white people; a rather non legalistic comment when one considers eg white skinned Muslims, Jews [Ashkenazi white or Sephardic sometimes brown skinned] or people of Chinese origin. The argument centres around the eligibility and of uptake of pre sentence reports where custody is an option. The differentials are put down to racism. As I was led to understand as a magistrate, sentencing guidelines were just that; guidelines and not tramlines. Section 59 of the Sentencing Act 2000 directs all courts to follow the guidelines but not to do so if "it would be contrary to the interests of justice". I have personally followed that route in court but of course fewer that 4% of offenders at the lower court receive immediate custodial sentences.
The Sentencing Council with the apparent approval of the previous government announced that from April 1st there should be certainty that pre sentence reports be made for the aforementioned minorities. Those supporting this proposed policy seem to be from the cupboard of the "progressive usual suspects". On the other hand pragmatists as I like to consider myself, seek to understand and formulate a conclusion to a situation or problem whilst "progressives" have a pre determined mindset which they apply to such situations. In 2022 statistics showed that "Asian and black offenders were 6% and 4% more likely to be sentenced to immediate custody in comparison with white offenders". But also the facts were that in crown courts over the previous five years white defendants consistently pleaded guilty [68%-77%] thus obtaining sentence reductions up to one third cf black ethnic groups [58%].
For every pre sentence report a probation officer must be available for its being obtained and presented. The staff statistics are not rosy as seen below considering the rise in the prison population: cause or effect?
Not all countries have sentencing guidelines. This paper from America might be of interest. It was 1999 that the state of Michigan initiated the American idea of sentencing guidelines and it was from that origin that similar guidelines developed in the British nations. I have no doubt that with AI so far advanced that it`s only a matter of a few years until the sentencing process itself will be AI driven with human input as a failsafe.
The bottom line on the current situation and future similar divergencies is that there will be a time when the choice is to be ruled by government or by lawyers; the devil or the deep blue sea some might say.
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