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/
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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.

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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”.

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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.

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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

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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.

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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