Why Do We Rehabilitate Criminals?
This week on the podcast, we discuss some of the legal and political issues around rehabilitation.
In particular, we consider what the aims of rehabilitation legislation are.
On the one hand, allowing some minor offences to be struck from the record after a certain period of time assists with rehabilitation because it allows former offenders to move on with their lives.
On the other hand, ensuring that serious offences are never struck from the record acts as a deterrent against criminal behaviour. As we discuss in the context of this week's case, it also protects members of the public and businesses who might be wary of dealing with someone who has a serious criminal past.
As the European Court of Human Rights has acknowledged, this is a difficult balance to strike and each country will adopt their own approach.
The system in the UK is somewhat nuanced and depends upon which part of the country you are in, but generally if you are sentenced to more than 30 months in prison then that crime will remain on your record for the rest of your life.
This arbitrary approach has attracted criticism, and during the proceedings from this week's case, the appellant argued that decisions should instead be made based on the individual circumstances of each case.
That might seem like a fairer system, but increasingly this is the sort of thing that politicians from both the Labour and Conservative Party would argue is a form of ‘two-tier’ justice.
As I have previously discussed in this newsletter, the ‘two-tier Keir’ attack line is one that has been popular amongst the Tory front bench since the anti-immigration riots last summer.
Whether they like it or not, and no matter how untrue the accusations are, this is something that Labour has had to defend against.
The latest battleground in this ongoing war is the sentencing guidelines, which were due to come into force tomorrow.
Under the proposals from the Sentencing Council, judges would be encouraged to order pre-sentence reports in respect of offenders from ethnic minority backgrounds.
These reports offer some context regarding individuals and advise on which sort of punishment might be the most effective.
This more personalised system would likely be more effective and geared towards the rehabilitation of offenders.
However, the prospect of a white criminal getting a harsher sentence because a judge has not requested a pre-sentence report has justifiably caused some consternation from MPs on both sides of the House.
The Justice Secretary, Shabana Mahmood, requested that the guidance on this point be reversed, but the Sentencing Council refused, citing their belief that the changes would help redress an existing disparity in the sentences between different ethnic minorities.
Now the Ministry of Justice has announced that emergency legislation will be introduced with the very specific aim of altering this instruction to judges. Earlier on today, the Sentencing Council backed down from this stand-off and announced that it would delay the coming into force of the new guidelines.
All of this is a bit of a storm in a teacup.
The Sentencing Council is in the best position to amend the guidelines, given their expertise and proximity to the front line of the criminal justice system.
That is not to say that the Justice Secretary should not be able to intervene as a minister and as an elected official setting policy.
However, this change would have almost certainly passed unnoticed had the accusations of a ‘two-tier’ justice system not been a major attack line from the Opposition.
The conclusion to draw from this rather odd little episode should not be that pre-sentence reports are a bad thing.
The appellant in this week's episode of the podcast expressed a reasonable desire for a rehabilitation regime that is more personalised for each offender and therefore proportionate to its aims.
Pre-sentence reports are a positive step towards this and ought to be available no matter what the ethnicity of the person in the dock.
Episode link: https://uklawweekly.com/2025-uksc-8/
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Marcus