If British citizens conclude that they can no longer count on the neutral application of the law, the U.K.’s civic consensus will be eroded.
The U.K.’s Sentencing Council for England and Wales has heard the public’s objections to its proposal for a two-tiered justice system in which an offender’s accidents of birth can theoretically mitigate the severity of the consequences individual criminal acts should incur. It has nevertheless rejected those concerns.
The Sentencing Council’s plan to provide lighter sentences to offenders who identify as “transgender” or belong to an “ethnic minority, cultural minority, and/or faith minority community” produced widespread outrage earlier this month. The Labour government and its Tory opponents alike objected to the Council’s Orwellian proposal to convert the justice system into a vehicle for the most prejudicial application of the theory of social justice. Prime Minister Keir Starmer even proposed a legislative remedy to the council’s overreach if it went ahead with its scheme. But the council insists that its critics are wrong.
The “guideline did not require revision,” said the council’s imperious chairman, Lord Justice William Davis, who attributed objections to the proposal to a “widespread misunderstanding.” In practice, the guidelines would merely provide sentencing judges with pre-sentence reports on the offender that convey as much information as possible. “The cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed,” Davis wrote. That explanation has so far failed to satisfy any of the proposal’s many objectors.
Our own Abigail Anthony identified the obvious and undesirable second-order consequences that would arise from the attempt to strip the blindfold from Lady Justice’s eyes:
A pre-sentence report is an assessment written by a probation officer and submitted to the court that effectively recommends an appropriate sentence; according to the Sentencing Council, a pre-sentence report may be “pivotal” in swaying the judge to “impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence.” In other words, a pre-sentence report has the potential to mitigate a sentence — and the guidelines seem to require such a report for only some demographics.
“It is difficult to see the Sentencing Council’s guidelines as anything other than a justification to be more harsh when dealing with offenders who are white males or Christians,” Anthony wrote. Indeed, it is easy to see how memos that include those criteria can convey to career-minded judges the decisions they are supposed to reach if they value their own prospects for advancement.
Despite the ulterior motives that likely inspired JD Vance’s blistering tirade in a February speech to the Munich Security Conference’s delegates, this is what he meant when he expressed his apprehension over “the retreat of Europe from some of its most fundamental values.”
It’s hard to think of a more apt example of Europe’s rejection of classical liberal ideals than an imperious, unelected council insulated from political consensus and unresponsive to electoral mechanisms simply decreeing that justice will henceforth be dispensed in a measure that is commensurate with how popular the offender’s identity happens to be. That is a recipe for caprice, mob justice, and the delegitimization of any democratic society’s political covenant.
The unfortunates born into unfashionable bodies can expect to experience the full weight of the British justice system if they run afoul of the law. Those with the right features, however, might have an easier time of it. Even if this is not how the Sentencing Council’s guidelines are strictly applied, the impression that British citizens can no longer count on the neutral application of the law will erode the U.K.’s civic consensus.
The Sentencing Council surely believes its guidelines will help repair some historical injustices. Whatever good the council thinks it is doing, the wrongs it hopes to rectify will be dwarfed by the consequences its two-tiered system of justice will invite.