Guidelines explained

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comDespite reports that the government is seeking to rush legislation through parliament, a revised sentencing guideline on the imposition of community and custodial sentences will take effect in England and Wales tomorrow. As I reported last week, the Sentencing Council has rejected a request from the justice secretary to remove from the guideline of a list of 10 groups for which pre-sentence reports would “normally be necessary”. But political correspondents were briefed yesterday that the wording to which ministers object will be disapplied by primary legislation — a step that would be entirely unprecedented.(Update 1800: the government now expects the Sentencing Council to back down and suspend the guideline.)What difference will the legislation make?It’s not clear how quickly the government could get its proposed legislation through the House of Lords. (Update 1700: government sources now accept that this could not be before 22 April, when the Lords return from their Easter recess). But amending the guideline would be largely symbolic because legislation could not prevent magistrates or judges requesting pre-sentence reports for defendants in the 10 “cohorts” identified by the Sentencing Council. Equally, a sentencer may decide not to request a pre-sentence report for any offender while the full guideline remains in force if the court thinks it already has enough information about the offender and the offence.Ministers clearly see this as a trial of strength with the judges who, by law, make up the majority of the Sentencing Council. At a superficial level it is a battle that the government will win, since the judges can be relied on to respect the sovereignty of parliament. But at a deeper level it is a fight that will worsen relations between the executive and the judiciary. It will further damage the standing of the lord chancellor, Shabana Mahmood, among the senior judges who decided at an emergency meeting of the Sentencing Council last Tuesday evening to reject the last-minute amendments she had requested. Separately, she will have to explain why her department signed off a probation court services policy framework in January that has been picked up by the Telegraph this morning. It includes the following passage:Mahmood is reported by the Guardian to be looking at a more radical plan to give ministers the power to veto or amend guidelines from the Sentencing Council before they come into force. I shall have more to say about the far-reaching constitutional implications of the government’s decisions in my column for the Law Society Gazette this Friday.What difference will the guideline make?Sir William Davis, the appeal judge who chairs the Sentencing Council, explained to me earlier this month that the new guideline is no more than a revision of an existing guideline which has been in force since 2017.Why, then, did it have to be changed? Is there much in it that’s new? And was it really an attempt to reduce the prison population, which rose to 87,684 last week? Those are among the questions I put to Davis, a senior appeal judge, in an interview for my podcast A Lawyer Talks.We recorded the interview on 5 March, unaware that, as we were speaking, the shadow justice secretary Robert Jenrick was politicising the issue by claiming in parliament the guideline would make a custodial sentence less likely for those “from an ethnic minority, cultural minority, and/or faith minority community”. That is “not what the guideline does”, Davis explained last Friday — and not for the first time.Although Davis and I discussed the new guideline’s emphasis on pre-sentence reports in general terms, neither of us mentioned the 10 broad groups for which the council said they were normally necessary. But I did ask Davis how the courts should treat defendants such as Mike Amesbury, who was still an MP at the time despite having received a 10-week prison sentence. It’s worth noting that Amesbury received an immediate custodial sentence from the deputy chief magistrate Tan Ikram CBE, even though the court had received a pre-sentence report on him. Three days later, the Crown Court suspended his sentence and imposed community punishments.My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.