'If only we had a barrister as Prime Minister.' Dan Kitwood / Getty Images
It might not induce quite the same moral nausea as the Pakistani rape gangs cover-up, but the ongoing sentencing guidelines scandal is another hard-hitting episode in a promising new series in which public disgust is suddenly and belatedly directed towards racist policies in the justice system.
This latest upset concerns pre-sentence reports and shines a light on how the system has been captured by political activism. “PSRs” are reports about a defendant written by probation officers for the assistance of the judge in a particular case. Probation officers advocate for probation. If there is any chance that a defendant might avoid prison, his lawyer will want a PSR: it’s just that little bit harder for a judge to bang someone up if he has a document in front of him arguing for a non-custodial sentence such as a Community Order, written by an expert and filled as they always are with very scientific-looking sociological analysis in support of that recommendation.
No PSR is needed, though, if a judge thinks it “unnecessary” — which generally means: if the defendant will definitely be sent to prison. Otherwise, a report must be obtained. The new guidelines, which were due to come into force this week but were temporarily suspended following a last-minute legal intervention by Robert Jenrick and are soon to be made unlawful and of no effect by Shabana Mahmood’s emergency legislation, add to the “unnecessary” exemption: “A PSR will normally be considered necessary,” the proposed instruction goes, “if the offender [is] from an ethnic minority…”
In edge cases, then, this new line will nudge judges into ordering a PSR when they otherwise wouldn’t. Then, armed with a report recommending a Community Order, the non-white offender has a significantly higher chance of avoiding custody. Of course, not all PSRs recommend non-custodial sentences. But most do. So, on average, a PSR helps you avoid prison.
When Shabana Mahmood, the Lord Chancellor and Secretary of State for Justice, complained that “access to [a PSR] should not be determined by an offender’s ethnicity”, the Chair of the Sentencing Council, Lord Justice William Davis, replied at length. The closest he came to dealing head-on with the fundamental unfairness in the effect of the new guideline — that non-white offenders would on average enjoy a race-based advantage — was something of a straw-man: “I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders. Plainly that suggestion is completely wrong.” Plainly. But that is not what Mahmood, who is now proposing emergency legislation to block the implementation, nor any sensible person, is saying: there’s no instruction to impose a more lenient sentence, but a more lenient sentence will be the overall average effect if the special encouragement to order a PSR for a non-white defendant is to be heeded.
The Chair even accepted that “if access to a pre-sentence report were to be determined by membership of […] an ethnic minority background – that would not be a proper approach”. But if race-based preferential treatment is improper if it always happens, then it is improper if it “normally” happens. It is a distinction of degree, not kind. Ethnicity might not be strictly determinative, but it is a significantly influential factor.
As to the intention behind the guidance, the Chair explained, “the purpose of the list [that includes “ethnic minority”] is to remind sentencers of the kinds of cases in which it is likely that they will require more information”. But that is not what the guidance says; that purpose is not at all clear from the relevant text. And anyway, a discriminatory effect is a discriminatory effect.
More generally, the letter notes that it wasn’t the Sentencing Council’s idea, most of the consultation responses supported it, and the Lord Chancellor had not previously complained. All true, but that absolves neither the members of the Sentencing Council, who bear responsibility for its output, nor the wider political culture in which it operates. It is particularly striking that not one of its 14 members — including academics, several very senior judges, a Chief Constable of Police, and the Director of Public Prosecutions himself — thought to call out this obvious unfairness. As the Chair emphasised in defence of the measure, the Council’s vote was unanimous. But we shouldn’t be too harsh on them: you don’t get to be a member of the Sentencing Council, nor even a Court of Appeal judge, without proving your commitment to EDI.
Above all, and regardless of whether the guidelines come into force or not, the Chair’s letter gives an illuminating snapshot of how the Blob quietly turns unpopular racial activism into force-of-law policy. In this instance, the idea had its origins in a “thematic inspection report” by HM Inspectorate of Probation. The letter does not identify the specific report, but it is probably this one, which complains that “[pre-sentence] reports did not consider the impact of structural barriers on the lives of black and mixed heritage boys or explore their experiences of discrimination”. Without first-hand knowledge of the Probation Inspectorate, its Blob factor is hard to determine, but the slides that accompany the report (sample extract: “add some unity, understanding, and respect for the future, Serve with justice, And enjoy”) indicate that it’s probably on the high side.
The next step was for the “Probation in Courts” team to “highlight what they considered to be the importance of referring to specific cohorts when reminding sentencers of the importance of requesting pre-sentence reports”. After that, the Sentencing Council considered the Equal Treatment Bench Book, relevant passages of which include a summary of findings from David Lammy’s 2017 report on BAME outcomes in the criminal justice system, such as the significant overrepresentation of black people in prison, the (not unrelated) fact that black defendants are much more likely to plead Not Guilty, and the observation that “pre-sentence reports may be particularly important for shedding light on individuals from cultural backgrounds unfamiliar to the judge”. On this basis, then, and taking into account “all the available evidence and guidance”, the Sentencing Council decided to insert the fateful lines.
Then came the consultation process, and it was noted in the consultation report that “many individual respondents, including some magistrates, did not believe there should be a cohort list at all, mostly citing reasoning around the idea that the list is biased and conflicts with equality in sentencing”. “While responses varied,” the report continued, “with strong views both for and against the list, overall, a much higher number of respondents supported retaining the list.” But the institutional consultees tend to be, per O’Sullivan’s First Law well-disposed towards “positive” discrimination — and there are powerful disincentives for individuals working in criminal justice to cry foul. It’s hardly a fair referendum.
Another ongoing battle in this area, which gives a flavour of the climate in which lawyers now operate, is the Bar Standards Board’s efforts to replace a duty not to discriminate with a duty to “act in a way that advances equality, diversity and inclusion”. The consultation closed in November last year, and is yet to report. Last year’s Chair of the Bar, Sam Townend KC, has opposed the change because it is “likely to hinder progress” and “probably unlawful”. Former Justice Minister David Wolfson KC called it “coercive, illiberal, and dangerous”. Akua Reindorf KC said that it could put barristers “under a duty to promote an ideological position with which they disagree”.
But the Director General of the BSB, Mark Neale, was unrepentant, and sought to reassure the legal journalist Joshua Rozenberg (another critic of the change) that the consultation was “very genuine”. As opposed to what, one wonders — other consultations he has presided over?
In fact, the proposed new duty is effectively already in force, because anyone applying to become a KC has to prove that they are taking “positive action to promote diversity…” Indeed, the assessed competency entitled “Diversity action and understanding” is given the same weight as written and oral advocacy combined. But no one much spoke up when that was brought in, and now — surprise, surprise — the BSB now prays it in aid. Relax! You’re already doing it actually! It can’t be that bad!
Shortly before the BSB announced their proposed change, the Bar Council Chair had suggested that the regulator leave EDI matters to the profession. But the BSB (statutorily separated from the Bar Council since 2007) is obliged to “encourage a diverse profession” under s.1 of the 2007 Act. Its chief, explaining why he would not do as the Bar Council Chair suggested, claimed that “students from minoritised backgrounds are half as likely to be successful with pupillage applications as equivalently qualified White counterparts”. However, in no meaningful sense is this true.
The data from which the claim is likely derived (he gives no citation) was analysed by the Bar Race Working Group, a body established by the Bar Council in the George Floyd summer of 2020. It consisted of 32 barristers, of whom around 80% are from an ethnic minority. They concluded, in their 2021 report, that “the data… categorically and definitely evidences, in quantitative and qualitative terms, that barristers from all ethnic minority backgrounds… face systemic obstacles to building and progressing a sustainable and rewarding career”.
According to the BSB’s 2021 report on diversity at the bar, the percentage of non-white barristers that year was 14.7%, while the percentage of non-white working-age people in the population as whole was… also 14.7%. That does not seem very racist. As far as pupillage is concerned (that’s a barrister’s year-or-more-long apprenticeship, hard to obtain) at least 23% of pupils were found to be from ethnic minorities in 2020, which compares with 20% ethnic minorities among the juridiction’s 25-34 year-olds (roughly the age-range of pupillage applicants). That does not seem very racist either.
So how could Neale be claiming that ethnic minorities are half as likely to get pupillage? The answer seems to lie in the fact that ethnic minorities attend Bar school and apply for pupillage in hugely disproportionate numbers: 39% of pupillage applications in 2022 were from ethnic minority applicants (actually more like 42% if the “prefer not to say” answer is evenly distributed), whereas they only account for 21% or 22% of pupillage offers.
So, although they outstrip their proportion in the population, they are not succeeding in proportion to their rate of application. Alright, but one explanation might be the large number of foreign students on the Bar training course. The status of being “called to the Bar”, even if they do not obtain pupillage, confers professional advantage in many former commonwealth countries. If, as is likely, many of these students have non-native-level English and limited connection to this jurisdiction, it is perhaps not surprising that their success rate is lower. Whether or not this is in fact the reason, you can be sure that any such alternative explanation is given no space in any of the official reports on the matter. To say that ethnic minorities are “half as likely” to get pupillage, when their proportion among pupils is higher than their proportion among their age group in the population at large, and just leave the inference of racism there for the taking, is at best deeply misleading.
But this is how it seems to go in the justice system now. Whether it’s Lammy on racist courts, or the BSB on racist barristers, data is interpreted to fit an agenda. And the resulting bad idea, in breach of an important principle, is laundered through public consultations few sane people have the time or nerve to respond to. Then, the thick end of the wedge is driven in as small victories are parlayed into bigger ones. If only we had a barrister as Prime Minister, who valued meritocracy and the independence of the Bar and judiciary, who might be able to make all this stop.
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
Subscribethis all boils down to the ‘White’ establishment,Goverment, the legal system see’s non white people as having no agency, lower cultural values and well they should be treated softly because well blacks hey, they don’t know better. Like when a UK police force said Rape was a part of Islamic culture, don’t judge it
So as long as we treat Black men like children, give them special dispensation, then mostly black youth will be stabbed to death by other black youth on the streets of our cities. But they don’t care about that, 100 black youth could be murdered by other blacks, not a peep, yet that rare occasion if the perp is White, well you gotta have a moral panic, target the majority of the country and introduce illberal measures to combat this ‘threat’
It’s all part of the permanent crisis created to justify the endless expansion of the state and the gravy train that all these people ride.
A useful, informative examination of DEI within our justice system, thank you.
Having just read Allison Pearson’s well-researched, in-depth article about Lucy Connelly in the DT this morning and the way she has been treated by judges, probation and prison officers, it seems that this promotion of DEI may not only manifest as being soft on ethnic minorities, but also as being gratuitously harsh on white British natives.
There should be no place for any kind of activism within the UK justice system.
I read the same article last night. I agree about the depth of research and I thought it took a generally reasonable tone. Alison may be partie pris now, because of her experience with the same police overreaction, but that doesn’t invalidate her findings.
Frankly it made me very angry, and ashamed to feel that such injustice seems to be baked into the entire system. A system of which as a British citizen, I used to feel some measure of pride.
All faith in the British system of Justice should have evaporated years ago when Lord Justice Hoffmann* inexplicably failed to RECUSE himself during the Augusto Pinochet Appeal.
Even earlier, although none of us was aware of it at the time, the renowned Master of the Rolls, later to be Lord Denning, had cravenly capitulated to Prime Ministerial pressure over his ‘Profumo Report’.
These two deplorable incidents, both of which went ‘unpunished’, hardly inspire confidence in our Judiciary, so this current controversy hardly comes as any surprise.
Thus it is probably pointless to repeat what the noble Roman, Juvenal, quipped about this centuries ago.
*Aka “leg over Lennie”.
https://www.lawgazette.co.uk/analysis/how-pinochet-tainted-hoffmanns-brilliant-career-/50436.article
Thank you for that erudite résumé.
My point is that Hoffmann remains unpunished, and still sits I believe on the bench of the Hong Kong Court of Final Appeal.
Had this been Ancient Rome he would have been thrown from the Tarpeian Rock* and rightly so.
*’Rupe Tarpea’.
I suppose it is probably unreasonable to expect any justice system to be 100% perfect, human nature being what it is there are always going to be a few failures and errors of judgement, but the situation today is a bit different is it not ?
A carefully planned piece of political activism – DEI – has been deliberately inserted into our justice system to socially engineer a politically inspired outcome, a reduction in the numbers of ethnic minorities in prison.
Is that ethical or moral ?
What is the point of prison if it is not to punish criminals and protect the rest of us from the dangers they may represent ?
Once you enter the realm of deliberately manipulating custodial sentencing for political reasons, that’s no longer justice, that’s totalitarianism.
“Is that ethical or moral?”
NO it is not! It is a national disgrace of unparalleled proportions, no ifs no buts!
However my point is that the ‘system’ has been rotten for sometime now and yet NOTHING is ever done about it ! No system is perfect* but when deliberate deceit at the highest level is detected something must be done.
If you can’t trust the Judges who can you trust?
*’We’ are not sadly, Ancient Romans, who rather set the ‘gold standard’ for all this.
“Whether it’s Lammy on racist courts, or the BSB on racist barristers, data is interpreted to fit an agenda.”
Like so many of these activist-led DEI initiatives, the starting point is the assumption that the “injustice” exists. Denying or even questioning this in a genuine spirit of enquiry is further evidence of the injustice. The goal then of any investigation or report is simply to provide a formal means of easy citation to dismiss any further challenges.
Policy is then created to correct the injustice, but often the problem can’t be fixed by the preferred means – usually involving other people’s money – because the cause has been misdiagnosed. But even if it can, it can never be acknowledged to have been fixed because then the grift is over.
Is the pope a catholic? Do bears poo in the woods? Will a grievance narrative politician like Lammy produce an incompetent and totally biased report?
Lammy is very much batting for what he sees as his own side. It is a fairly natural expression of in group preference. It was very much in evidence amongst minority groups in Britain post George Floyd, who along with white liberals were quick and constant on their denouncements of the West. The West struggles with this so much because being self critical is a WEIRD characteristic, including a strong tendency to pretend to have no in group preference. There is a very good Tablet article from 2019 which shows that white liberals (who have an outsized influence on culture) actually have a strong out group preference, actively preferring people of other ethnicity over people of their own. Some of this is pretending and some of it is an active dislike of one’s own group and a desire to see it lose. This attitude, combined with mass migration will only see discrimination against the indigenous population increase over time. It is baked hard into the system.
white liberals also tend to be the most ‘racist’ people you have, face it most white liberals live in very white areas, cross the road if a slighty tanned fellow is coming down the road, think we should lower standards for non whites and think hey immigrants good, they make curry and drive uber’s
it’s like the clip of Kelly Osbourne , saying if we don’t have migrants who will do our gardening or something like that when reacting against Trump
Why do White liberals have outgroup preference, because they are not in competition on the whole with those people, they see migrants as support, service to their lives. They don’t see them as compeition for wealth, power, influence
The real threat to say the British state, has never come from Islamism, i.e any barely competent state could deal with those dopes like that. It always comes from within.
They say look at who you can’t criticise , it’s whose in charge, that’s wrong, look at who they do criticise, it’s who they fear
The ‘establishment’ fear the white working class, not only because without them the country ceases to operate, but they are the only group that can usurp them. So they must deingrate, reduce, the White working class, tar them as undesirable.
Of course the problem for them is, by doing so , means it’s far more likely the White working class will just grab power, because the state has an uncomfortable truth, they have 170k cops , mostly useless, and a very small army (who are mostly white working class) and would odds on fight for the people not the state
If the White working class have no stake in this country, they will just take this country and no one will be able to stop them.
The establishment both fears the White Working class as it should, but needs it for it’s very survival. Blacks, Islam, they are no real threat
I have it on ‘good authority’ that the Army, minute as it is, would slaughter the ‘blob’ and the ‘civil service’ at the ‘drop of a hat’ and with considerable relish.
Already the Home Office is attempting to emasculate the country, as those currently holding both shotgun and firearms licences are finding out.
I must say I never I would live to see the day; Truly astonishing.
think about who the Army is primarily made of ,as Labour don’t. They are pretty much White working class men, mostly from the North.
These are people from the same areas, the families, that Labour call’s bigots. I agree i know what side those men are on, and it’s not Labour.
the Police on the other hand,out of those 170k officers, how many are not woke, DEI, obese, cowards. We see many who just run away.
Sure they will be say 20% that are decent and the problem is those ones are the ones mostly targetted by their own institutions, because White, Male , capable and therefore have little love for their own bosses.
this is the problem a i noted, the establishment fears the White working class as it’s the only true threat to them, but likewise they need it to survive
as a Society from a pure rational viewpoint, you can do what you want to Islam, Blacks ,Gays to be honest,they are not an existential threat to your system. If the UK wanted to end the Islamist threat in the UK, it would take a week, it would be done.
the White working class, they are the only ones capable of policing themselves, without them , you have no country, no society.
the very act of targetting the White working class, makes it far more likely they will rise up.
It’s amazing Labour MP’s went to all these so called ‘good public schools’ yet they know nothing of history, human nature, basic causation
In the past those premier schools taught the ‘elites’ how to govern, what are they teaching them now
i’m immensely patriotic, but not to no goverment, not even the King, i’m patriotic to the core of what is Britain , it’s people, it’s being.
If the UK got rid of the Monarchy tomorrow, i would still be patriotic.
The UK establishment has managed to turn the most loyal people ever, replace them with people who(not all) systematically hate the notion of this country and think they will still win.
Sometimes i alternate between these are the most stupid people to have ever lived, or this is some insane plan to forment revolution in this country, that they want not a Race Riot, a Race war, and they think despite all the evidence they would win that
I’ve heard that too. TBH a stint of marshal law and forced mass remigration via the Chanel wouldn’t be out of order right now. What a sight that would be.
Westminster really needs to be rinsed of all the spineless liberal parasites that have absolutely no interest in implementing the will of the people or enacting policy that is in the country’s interest.
The behaviour of the soldiery in “I, Claudius” springs to mind. Now that would be something to behold …
This whole ghastly process was initiated by none other than Tory Prime Minister, David (“Call-me-Dave”) Cameron who, in 2016, asked the equally awful David Lammy MP to lead a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities. (https://www.gov.uk/government/news/review-of-racial-bias-and-bame-representation-in-criminal-justice-system-announced).
Yet one more example of many (e.g. Non Crime Hate Incidents) dumped upon the UK populace by one of the worst ever succession of dreadful Tory governments.
The Woke DEI cancer was embedded in British institutions, private, corporate and charitable, by the Tories during their disastrous 14-year rule. Their responsibility for this latest manifestation of their appalling legacy needs to be highlighted and clearly understood. At least Starmer appears to be minded to stop this madness – though I wouldn’t trust him at all not to wiggle it into being by some clandestine manoeuvre at a later date.
The only ‘bias’ that exists is noticing that some groups commit a disproportionately higher rate of crime than other groups.
Excellent, hard-hitting & informative article. Thank you. For the sorts of reasons outlined in the article (among others), EDI ideology should really be eliminated from all institutional agendas, including those of universities such as the one I work for, Oxford. Unfortunately vested interests as well as a flaccid conformism make any progress on this front hard to achieve.
“…flaccid conformism…”
That’s a good one!
Yes, a very convincing article. Not surprising that the writer is anonymous. Arguably he or she is in breach of Core Duty 5 of the Bar Council’s Code of Conduct, not to “behave a way that brings the … administration of justice into disrepute”. Apparently this is still a limitation on barristers’ freedom to express opinions in the media? I’m quoting from a Bar Council ethic committee document last reviewed in 2020, so it may be out of date or I may have misunderstood it, but if not, it’s a bit of a Catch 22, isn’t it?
There is an interesting parallel in the university world.
On the one hand males get more of the jobs. On the other hand female applicants have a much higher success rate. Somehow progressives have not noticed this, and so have not tried to positively discriminate in favour of the men. Should they have done so? Most likely not. The most sensible explanation is that men with lower qualifications are more likely to apply than women with lower qualifications. Or – as one fair-minded male who lost out put it: “A lot of women give up or opt to have children instead of spending all their time post-doc’ing. So the women who stay in the race tend to be extremely tough dames with a lot of qualifications”.
“Then I commanded your judges at that time, saying, ‘Hear the cases between your brethren, and judge righteously between a man and his brother or the stranger who is with him. You shall not show partiality in judgment.'” Deuteronomy 1:16–17
If someone has, say, stabbed another person, then I cannot see why the colour of their skin, nor their religious background, nor whether their Dad lived at home, etc etc, are relevant. Do the crime, do the time. The same time!
“David Lammy’s 2017 report on BAME outcomes in the criminal justice system, such as the significant overrepresentation of black people in prison,“
Could the over representation have something to do with the disproportionate percentage of crimes they commit? We hear the same argument in the US as if 13% of the population committing more than 50% of the homicides is unrelated to the prison population.
Once more, white leftists treat black people like mascots for a preferred cause, ignoring the results, namely that most of the offenders’ victims are also black.
Good article. But the justice system they want to impose on us is not just in breach of an important principle. It’s in breach of the founding principle of justice in this country, equality before the law.
So why not “white working class”?
Thank you for your article.
https://www.sentencingcouncil.org.uk/wp-content/uploads/Equal-Treatment-Bench-Book.pdf
Example if ever it was needed demonstrating the extent of Sir DEI-Argo’s two tier legal structure that, with or without Mamood’s intervention, shows the special treatment for minority “communities.”
The money it must cost to produce this is criminal in itself. The fact that minorities get this degree of discrimination is remarkable.
Wherever and to whatever extent possible, the ruling British middle-class would prefer the white British working class to be replaced by the children of Empire and Partition. The British class system, suspicion and resentment of different ‘native’ social classes has always been the great tumour in the British body politics.
The more I read about our two tier justice system, the more disgust I feel for the State which expects us to pay for all this positive discrimination.
It seems that white people in this country do not experience racism, do not have multigenerational traumatic backgrounds, don’t live in impoverished economic environments, don’t grow up in single parent households and are not obstructed by interracial competition.
The same sort of racial denialism occurs within the wider cultural environment. White people don’t have a traditional national culture. White people can’t be at the receiving end of racism. The history of white people should be denigrated out of existence.
Clearly the underlying intention of anti-racist liberals and their nonwhite adjacents is to enact positive discrimination at every opportunity in order to encourage the formation of the radical right in order to justify further positive discrimination which then further encourages the formation of the radical right with sentencing guidelines ensuring any member of the radical right goes to prison.
And guess what, the white population is paying for all this institutional racism whilst being told to shut up or being condemned as a radical right racist.
Disgusting. No wonder the country is being radicalised. It’s being radicalised by the State.
It all boils down (a) to stupidity (on the part of people who should know better) and (b) what we call “cute hoor” behaviour by racial minorities or their advocates to get better deals than they deserve for (i) people facing sentencing and (ii) people trying to pursue a legal career. The long term consequences for the legal system, for justice, for respect for the courts and for the quality and competence of those who work in the legal system hardly need emphasising.
I just wonder how bad it will need to get before we rise up en mass?
I think it will take the economy crashing to trigger widespread social unrest.
Activist judges and Hope not Hate etc better have valid passports ready. No one will forgive or forget what these people have done to the country and its native people.
“A PSR will normally be considered necessary,” the proposed instruction goes, “if the offender [is] from an ethnic minority…”
My first reaction, instantly and without thought or reflection, was “Go f**k yourself…”
Upon reflection, I would add, “… and the horse you rode in on.”
I have seen this happen. A Muslim lady was spared custody for a serious contempt of court because a psychologist opined that she would feel ‘shame’ in religious community. If she had another faith or none the prison doors would have clanged shut.
The real issue in our society is no longer being able to distinguish between the roles of different arms of our system. Justice must be entirely independent and neutral on basically everything. Social issues are not part of its purview.
It’s the rest of society that is responsible for improving the lot of all citizens, minority or otherwise.
Keep the two separate! Completely. Always.
But this was always intended. Blair created the precondition that anyone appointed to the Bench should demonstrate their support for multiculturalism (the term “diversity and equity” being then in use). The current situation of an ideologically motivated, activist judiciary was always the long-term goal, as was the politicisation of the police
Private Frazer was ahead of his time.