The two-tier sentence row must be a one-off

By Danny Shaw

Who’s in charge of the Ministry of Justice?

Judging by the events of the past few weeks I’d say Robert Jenrick is calling the tune. 

To be clear - the dispute over the Sentencing Council’s controversial guidelines on pre-sentence reports did not end in a ‘victory’ for Shabana Mahmood, the Justice Secretary, as some have claimed. If anyone came out on top it was Jenrick, her Conservative shadow.

On March 5, Mahmood came to the House of Commons to make a statement about the backlog in the courts in England and Wales. She wanted to maximise publicity for her decision to fund an extra 4,000 judicial ‘sitting days’ in Crown Courts. 

When she’d delivered her 1,100-word statement, Jenrick had an opportunity to respond. There was a joke about Mahmood’s visit to a prison in Texas, a few barbs about empty courtrooms and then, at the end, the stinger: 

“The new sentencing guidelines published alongside this statement will make a custodial sentence less likely for those “from an ethnic minority, cultural minority, and/or faith minority community”, said Jenrick.

“Why is the Justice Secretary enshrining this double standard—this two-tier approach to sentencing? It is an inversion of the rule of law. Conservative Members believe in equality under the law; why does she not?”

This was how the Sentencing Council row started. Until Jenrick’s comments in the Commons no one in government had given the document quietly published that day on its website a moment’s thought.  Indeed, if anyone in the Ministry of Justice (MoJ) had noticed the political time-bomb ticking in the ‘Imposition of Community and Custodial Sentences’ definitive guideline they certainly didn’t tell Mahmood. They were, as an insider conceded, blindsided. 

Spooked

Unwelcome surprises are a feature of government, especially in a tricky department like the MoJ, which is responsible for the courts, sentencing and prisons. No justice secretary has ever gone through a term of office without a jail breakout, parole failure or a judge sounding off. It comes with the territory. And although the Sentencing Council guidelines should have been flagged by officials or aides, such is the volume of research and reports produced by the department and arms length bodies it’s inevitable one or two will slip through the advisers’ net. 

When that happens, though, it’s best to pause: take time to consider the response, where it might lead and what the longer-term impact could be. Unfortunately, my sense is that Mahmood and her team did just the opposite - they were spooked by Jenrick’s comments about ‘two-tier justice’.  The Commons exchanges hadn’t got much traction, but social media was buzzing - the Tory MP’s first 'X' post about the guidelines has been viewed 2.9 million times.

After telling MPs that she did “not stand for any differential treatment” and insisting there’d be no ”two-tier sentencing” under her watch, Mahmood fired off a press statement saying she would be writing to the Sentencing Council to “register her displeasure” and request they “reverse” the guidelines.  Her letter, published the next day, went even further: 

“I will also be considering whether policy decisions of such import should be made by the Sentencing Council and what role ministers and parliament should play,” she wrote.

“For that reason, I will be reviewing the role and powers of the Sentencing Council alongside the work of the Independent Sentencing Review. If necessary, I will legislate in the sentencing bill that will follow that review.”

Mahmood had deliberately upped the ante. She turned a political tussle that she should have brushed aside by blaming the Tories, who had “welcomed” a draft of the guidelines when they were in power, into an ugly and unnecessary row with the judiciary. In effect, she sided with Jenrick over his contempt for the Sentencing Council and in doing so strengthened his hand when she could have weakened it. He will come again and again and again with more claims of 'two-tier justice'.

Missed opportunity

That’s not to say the Sentencing Council got it right - I think the guidelines were an example of over-reach. There is no clear evidence that pre-sentence reports help counter the stark ethnic disparities in the criminal justice system and if there was, that would be a job for policy-makers to deal with. Setting out a list of cohorts was unwise and could lead to a scenario in which a pre-sentence report is ordered for a Black offender but not for a White offender who’s in the dock in the same court for the same offence. 

Mahmood was entitled to ask for the guidelines to be paused, given that the consultation process over them had taken place while Labour were in opposition, but she had no right to demand it. There had been ample time to raise concerns in the eight months after they came to power. MoJ officials had attended meetings when the guidelines were discussed and separately - I’ve discovered - Sir Nic Dakin, the justice minister responsible for sentencing, met Lord Justice William Davis, the Chairman of the Sentencing Council and the Head of the Office of the Sentencing Council, Steve Wade, on two occasions, last October and on 24 February - just nine days before the guidelines were published. I’m told that at these ministerial meetings the guidelines weren’t discussed, which would seem to be a huge missed opportunity by all those concerned. 

The proposed legislation which has been introduced to parliament to override the guidelines is completely over the top. It’s being “fast-tracked”, the Prime Minister said; the Home Secretary called it “emergency” legislation. What, exactly, is the “emergency”? Is national security at risk? Are dangerous prisoners about to be freed? Is a highly contagious virus sweeping the country again? The idea that emergency legislation is needed because Ministers, advisers and officials failed to spot some politically awkward guidelines is ludicrous. It has echoes of the previous government’s attempt to drive through the Rwanda scheme by passing a law that Rwanda was a safe country after the UK Supreme Court had ruled that it was not.  Are we going to get emergency legislation every time the government is embarrassed by Robert Jenrick or has a mild political difficulty? The bar has been set very low indeed.

The Justice Secretary’s case against the guidelines, set out in the Commons, was well put. I don’t doubt her sincerity when she declared that “all must be equal before the law”. And there is a strong argument to be made that the remit of the Sentencing Council, which was established by the previous Labour government 15 years ago, should be re-examined to ensure that it is sticking to what it should be doing - bringing consistency and clarity to the complex web of sentencing. But a more logical and measured way of defusing the dispute would have been to weave a review of the guidelines and the Sentencing Council’s wider role into the work being undertaken by David Gauke, the former Tory justice secretary. He’s examining ways - through sentencing - to stabilise the prison population and reduce reoffending. 

Instead, Mahmood has opened herself up to a charge of hypocrisy. As I reported in the Daily Telegraph her own department issued guidelines in January that were almost identical to the ones she has complained about. The Probation Court Services Policy Framework contains a list of ‘cohorts’ which should be prioritised for ‘bail information reports’ - documents prepared by probation staff to assist the courts when deciding whether or not a defendant should be remanded in custody or granted bail. The priority list includes ‘defendants from ethnic minorities’. Should we now expect the MoJ to draw up ‘emergency legislation’ to cancel out MoJ guidelines that were published under her watch? 

'Low cunning'

The Justice Secretary is a formidable politician. After Labour lost the Hartlepool by-election, in May 2021, the 44-year-old Birmingham MP was brought in to co-ordinate their campaign in the Batley and Spen contest two months later.  Sir Keir Starmer’s leadership was hanging by a thread. Angela Rayner was on manoeuvres. If the party had lost Batley he would almost certainly have quit. But, as Patrick Maguire and Gabriel Pogrund explain in their excellent book, ‘Get In’, which charts Starmer’s rise to power, Mahmood’s “dirty” tactics helped save him. “Nobody who campaigned alongside her in Batley pretends that those weeks were anything but a prolonged exercise in low cunning and heavy cynicism,” say Maguire and Pogrund.  Labour won by 323 votes.

In her Cabinet role, Mahmood, who is close to Morgan McSweeney, Starmer’s chief of staff, made some good, early moves.  She prepared the ground convincingly for emergency measures on prisons; launched Gauke’s sentencing review; appointed respected retired judge Sir Brian Leveson to suggest court reforms to clear backlogs; and announced sensible changes to the probation service. But far bigger battles lie ahead. 

The measures likely to be proposed by Gauke and Leveson will be far-reaching. When the impact on some jail sentences of the Gauke reforms becomes clear Mahmood will need all the support she can muster to resist calls to water them down. When Leveson suggests limits on jury trial for middle-ranking offences, lawyers and former judges, particularly in the House of Lords, will need to be won over. And when more prisoners who’ve been freed early go on to commit shocking crimes, like Liam Matthews did, she’ll need influential voices to remind people why the early release scheme was necessary.

That’s why picking a fight with the Sentencing Council wasn’t so clever. In the MoJ, it’s important that whatever differences Ministers have with the judiciary, the arguments take place behind closed doors. Judges, magistrates and lawyers should be partners in the shared endeavour to reform the courts and prisons. Labour are just nine months into a term that will stretch to 2028 or 2029: it’s about governing, not campaigning. This isn’t the moment to obsess about polls and focus groups, but to focus on the longer-term goals that must be achieved. 

Although some commentators applauded Shabana Mahmood’s stance on the Sentencing Council, others saw through it. Sir Ken Macdonald KC, the former Director of Public Prosecutions who now sits as a cross-bench peer, told ‘Double Jeopardy’, the Law and Politics podcast, that it was all to do with Jenrick’s ‘two-tier’ justice claim:  

“The Labour Party is running scared in the face of this allegation and they have overreacted massively, and rather than holding the line have got themselves into this spiral which will get worse and worse and worse…this is a bottomless pit, a black hole for the government,” said Macdonald.

Jenrick will return, emboldened by having successfully steered Mahmood away from the Sentencing Council guidelines. But Ministers can’t cave in every time they hear the cry ‘two-tier justice’, especially from someone who was sacked from the Cabinet, presided over record levels of immigration and failed in his bid to be Tory leader. 

There is better material to bite at - and there is a better story to be told, about not being distracted by dog whistle politics from taking tough decisions to fix the criminal justice system.