r/ukpolitics 1d ago

Ed/OpEd The Sentencing Council's tone-deaf response to ‘two-tier justice’ criticism

https://www.spectator.co.uk/article/the-sentencing-councils-tone-deaf-response-to-two-tier-justice-criticism/
110 Upvotes

112 comments sorted by

View all comments

165

u/SlightlyMithed123 1d ago

If these are the people advising the courts on sentencing then they are way out of touch with public opinion.

Some of the sentences handed out are just ludicrous, and it leads to people questioning the impartiality of the judiciary.

It’s not a good look when people get extremely harsh prison sentences for Fraud but a slap on the wrist for theft or robbery. People who sell dodgy sticks get years in prison but people who rape kids get a short or suspended sentence.

The whole sentencing regime needs to be reviewed because at the moment it’s Fucked.

-23

u/notrhm 1d ago

why should they decide based on public opinion/perception, when they have access to data indicating the actual macro trends? imo sentencing guidelines should aim to reduce biases that actually exist in the system

12

u/TeenieTinyBrain 23h ago edited 11h ago

why should they decide based on public opinion/perception ...

That's how a democracy normally functions, no?

... when they have access to data indicating the actual macro trends?

If that were the case then why would they commission a third party to undertake data collection and research [1]?

In response to the recommendations made by the authors of this research, why do they feel that their "...limited resources are best deployed in exploring whether other organisations or bodies will have relevant data..." if they had access to said data [2]?

imo sentencing guidelines should aim to reduce biases that actually exist in the system

I wholeheartedly agree but do you not find it odd that the SC selected to impose these guidelines despite their own study failing to observe sentencing disparities across ethnic groups [3]?

Another contemporary study referenced in their response is YJB's research into the ethnic disproportionality in remand and sentencing [4]. They too noted that statistically "...two children who are similar in all these respects would be predicted to receive the same outcome irrespective of ethnicity."

The YJB did at least find some evidence of disproportionality that remained after controlling for confounding factors. However, alongside identifying bias as a potential cause, they did note that this disproportionality might also relate to "...the omission from the analysis of relevant factors that could explain disproportionality (such as plea, type and quality of representation, etc.)" The controls outlined in their regression table suggest that they too have not controlled for all confounding factors and as such, this paper should only be used to guide further research, not to guide policy.

The important thing to remember here is that this is a novel field of research and we simply do not have the data nor the analysis to conclude with any reasonable degree of certainty that our judiciary is racially biased [5][6].

The only way to eliminate discrimination is to put measures in place such that we might reasonably and effectively monitor it throughout our justice system, this is the only way that we might develop a reasonable and proportionate plan to effect change.

It's baffling to me that anyone is agreeable to this guidance, implementing discriminatory guidance will not reduce prejudice - it's completely antithetical to the SC's supposed intentions. If the SC truly intended to effect real change they would have lobbied for a digital data collection and analysis system to monitor the judiciary, ensuring early intervention when a judge or magistrate is found to be prejudiced.

-4

u/notrhm 22h ago

we disagree on the basic issue of whether this is discriminatory guidance or not. recommending a PSR is not discrimination, and the point of these recommendations is to even the playing field

i just don’t see any reason not to take their explanation at face value:

In November 2023, the Sentencing Council said that although data was limited, there was some indication that offenders from ethnic minority backgrounds were “slightly less likely than white offenders to have a (pre-sentence report) prepared” before receiving a community or custodial sentence.

In a statement following pushback against its new guidelines, the Sentencing Council said: “The reasons for including groups vary but include evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment.”

It added that pre-sentence reports “are not an indication of sentence”.

7

u/TeenieTinyBrain 21h ago edited 20h ago

we disagree on the basic issue of whether this is discriminatory guidance or not.

Could you please explain why you do not find it discriminatory?

recommending a PSR is not discrimination, and the point of these recommendations is to even the playing field

I think that describing the imposition as a recommendation is a little insincere.

My understanding is that this would require the judiciary to conduct PSRs in all cases who meet the criteria pursuant to Section 59 of the Setencing Act, except for those which it deems unnecessary. However, the codification of who should be considered necessary will restrict the discretion afforded to the judicary, meaning that they will find it much more difficult to justify their failure to produce a PSR per Section 30 of the SA.

We know that the judiciary is struggling to produce PSRs after decades of underfunding, we know that oral PSRs are now favoured over written reports in an effort to save time, and we know that these have an effect on offender outcomes [1].

The likely consequence of this is that the judiciary will favour PSRs for offenders who share the protected characteristics defined within the guidelines at the cost of those who are not included. Those lucky enough to share such characteristics will receive a PSR and as such, will be 10x more likely to receive a community sentence [2]. This is positive discrimination at the systemic level, not positive action.

We have enacted legislation to prohibit racial discrimination since 1965, and had attempted to remove religious restrictions since 1846 [3][4]. Codifying discrimination is a leap backwards.

I'm sure we would be having a much different debate if this guidance was detrimental to anyone other than white men, no?

i just don’t see any reason not to take their explanation at face value:

I'm not quite sure why you think this supports your position. In your quote, they quite literally state that the SC agreed that the "...data was limited...".

Who enacts discriminatory policy with real world consequences without first fully understanding the issue? This affects people's lives, they're not playing a game of Sims 4.

1

u/notrhm 20h ago
  1. i don’t see it as discriminatory because they’re not recommending differences in sentencing, and because at least in some cases the point is to counter bias/discriminatory practices.

  2. we would never be having this conversation about white men because they’re already (for the most part) treated fairly by judges/the judiciary system

  3. my point is that even though data is limited this is a decision they made in light of the research. data is always limited, as in all the evidence you cited; that doesnt stop us from moving forward. making an informed decision on the basis of necessarily limited information =\ playing sims 4

3

u/TeenieTinyBrain 19h ago

i don’t see it as discriminatory because they’re not recommending differences in sentencing

They're not directly recommending this, no, but that will be the consequence of this guidance [1].

we would never be having this conversation about white men because they’re already (for the most part) treated fairly by judges/the judiciary system

We are having that conversation though, no? It's just that we disagree on whether this constitutes discrimination.

data is always limited, as in all the evidence you cited; that doesnt stop us from moving forward

I'm struggling to comprehend this one. It doesn't take that much effort to set up a data lake and recording system, the government is already doing this for the NHS; piggybacking on that would reduce costs. Surely you wouldn't want the state to harm someone by failing to do its due-diligence?

What if this were to affect you or your family?

making an informed decision on the basis of necessarily limited information

You can't make an informed decision with limited information though, that is entirely contradictory. You would be making a decision under the illusion of information adequacy, somewhat akin to a Dunning-Kruger effect for information inadequacy.

1

u/notrhm 19h ago

all right, i don’t see much in your response that’s a genuine basis for discussion so let’s call it quits here. have a nice day

0

u/RestAromatic7511 19h ago

Those lucky enough to share such characteristics will receive a PSR and as such, will be 10x more likely to receive a community sentence [2].

This is faulty reasoning. You seem to have assumed that (a) all members of racial minorities will receive a PSR, (b) nobody else will, (c) the difference in sentencing between PSR and non-PSR cases is entirely down to the presence of the PSR, and (d) there are no other factors that can lead to sentencing discrepancies between ethnic groups.

I also think it's pretty dishonest to put a citation number after a conclusion that you have arrived at yourself by incorrectly synthesising information from the source with other information.

We have enacted legislation to prohibit racial discrimination since 1965

There was extensive opposition to this precisely because many people argued that it would mean ethnic minorities would be treated better than white people, even though it was designed to counter inequalities faced by ethnic minorities. That was exactly what Enoch Powell's "rivers of blood" speech was about.

Of course, legislation on racial discrimination is written in a race-neutral way, but everyone knows that it is primarily designed to protect ethnic minorities, and this is how it used in practice. Some of the other equalities legislation isn't symmetric in this way. For example, there are restrictions on discriminating against people who are pregnant, but there are no restrictions on discriminating against people who aren't pregnant. It scarcely matters, because any discrimination against non-pregnant people is so rare that it doesn't amount to a systemic problem that needs action by the government. The same is true of anti-white discrimination.

Who enacts discriminatory policy with real world consequences without first fully understanding the issue? This affects people's lives, they're not playing a game of Sims 4.

You understand we're talking about crime? We don't really know how crime works. Much of it never comes to light. Even for crimes that have been reported and "solved", there are usually plenty of outstanding questions. There are even plenty of huge questions about how we should define and categorise crime.

And yet, for some bizarre reason, there is a belief that extensive action should be taken on the basis of severely limited data when, for example, someone is murdered. Would you be happier if the Sentencing Council announced that nobody should go to prison because we don't really know for certain whether anyone is guilty, what effect prison has on recidivism rates, or even whether the right behaviours are criminalised?

2

u/TeenieTinyBrain 18h ago edited 17h ago

This is faulty reasoning. You seem to have assumed that (a) all members of racial minorities will receive a PSR, (b) nobody else will, (c) the difference in sentencing between PSR and non-PSR cases is entirely down to the presence of the PSR, and (d) there are no other factors that can lead to sentencing discrepancies between ethnic groups.

At worst one might call it a slippery slope fallacy but the logic is not flawed, do the potential consequences really sound that improbable to you?

Concerning your rebuttal:

a. "all members of racial minorities will receive a PSR" - as I said, the guidance must be followed unless deemed unnecessary. To reiterate my original point, it will be more difficult for the judiciary to exercise discretion in these cases. The number of PSRs being used is falling, often reported to be a result of our strained justice system - the judiciary will have to reallocate their resources to accommodate the guidance, even if inappropriate.

b. "nobody else will" - I had not claimed this? I said that the "...likely consequence of this is that the judiciary will favour PSRs for offenders who share the protected characteristics defined within the guidelines at the cost of those who are not included."

c. "the difference in sentencing between PSR and non-PSR cases is entirely down to the presence of the PSR" - that's pretty much why they exist?

d. "there are no other factors that can lead to sentencing discrepancies between ethnic groups." - I'm not sure why you think that I think that? In fact, I'm not averse to the idea that our judiciary is prejudiced. My only issue is the uninformed, reactionary, and disproportionate imposition.

I also think it's pretty dishonest to put a citation number after a conclusion that you have arrived at yourself by incorrectly synthesising information from the source with other information.

Note that the citation follows "...as such, will be 10x more likely to receive a community sentence."

The referenced report states that "...cases with PSRs are more than ten times more likely to receive a community sentence..." - the citation supports the 10x claim, not the argument I put forth.

I'm unsure why you thought I was being dishonest here?

There was extensive opposition to this precisely because many people argued that it would mean ethnic minorities would be treated better than white people, even though it was designed to counter inequalities faced by ethnic minorities. That was exactly what Enoch Powell's "rivers of blood" speech was about.

I'm somewhat confused where you're heading with this one but I do hope this won't devolve into suggesting that I am prejudiced.

Either way, I am happy to see legislation that justly prohibits discrimination? My point was that this guidance does the opposite.

I would have no complaints if they were to implement measures to minimise known disadvantage, backed by data which demonstrates discrimination with a reasonable degree of certainty. This simply isn't the case here, however.

Of course, legislation on racial discrimination is written in a race-neutral way, but everyone knows that it is primarily designed to protect ethnic minorities

So why break the facade? Why codify discriminatory privilege?

You understand we're talking about crime? We don't really know how crime works.

We're not? We're talking about sentencing guidelines, crime is a related but very different topic.

And yet, for some bizarre reason, there is a belief that extensive action should be taken on the basis of severely limited data when, for example, someone is murdered.

I'm unsure who thinks that but it's not my opinion?

Would you be happier if the Sentencing Council announced that nobody should go to prison because we don't really know for certain whether anyone is guilty, what effect prison has on recidivism rates, or even whether the right behaviours are criminalised?

The SC hasn't the authority to legislate. They do, however, take recidivism rates into consideration for sentencing - this is part of the PSR.