The Weekly Round Up: Sentencing Council’s guidelines suspended, Civil Legal Aid and ECHR rights, and Hungary’s departure from the ICC
7 April 2025
In UK News
The Sentencing Council has suspended plans for new guidelines which could have led to different sentences depending on someone’s age, sex and ethnicity. The Sentencing Council’s decision to suspend plans comes in the wake of ministers preparing to “disapply” wording in the revised sentencing guidelines on the imposition of community and custodial sentences, through primary legislation. Justice secretary, Shabana Mahmood, had aimed to pass a bill through Parliament to halt the guidelines within 24 hours but was informed that it would be impossible before the Easter recess. Given that the revised sentencing guidelines were due to take effect in England and Wales last Tuesday, there would have been a “confusing period” during which time the guidelines would be enforced before being declared illegal.
These guidelines had specified a list of 10 groups for whom pre-sentence reports would “normally be necessary”. The groups in question included “those from an ethnic minority, cultural minority, and/or faith minority community.” In other words, the guidelines would have required magistrates and judges to consult a pre-sentence report before deciding whether to imprison someone of an ethnic and religious minority, in addition to other groups like young adults, abuse survivors and mothers. In doing so, the system would have “taken into account structural disparities in sentencing outcomes” and would have introduced measures targeted at combating racism in the courts. Senior legal figures, and the Society of Black Lawyers, have emphasised that the guidelines were an attempt to achieve “equal treatment” after “racist two-tier policing for 500 years”, specifically through attempting to address disparities in sentencing between white and non-white offenders.
After a meeting on Monday, the Sentencing Council confirmed it would not be introducing the guidelines when “there is a draft bill due for imminent introduction that would make it unlawful”. This follows the Sentencing Council having previously rejected a request from Mahmood to remove the ten specified groups as she said they would “single out specific cohorts for differential treatment”. In making this request, Mahmood had sought to demonstrate to the public that “Parliament is sovereign” and “everyone is treated equally by the criminal justice system”.
This matter has created tension between the executive and the judiciary, who make up the majority of the Sentencing Council. Mahmood has told MPs that the Sentencing Council’s role will be subject to review. In the Commons on Tuesday, Robert Jenrick, the shadow justice secretary called for Lord Justice Davis, the head of the Sentencing Council for England and Wales to be sacked over the row. Lord Hermer KC, Attorney General, speaking to Parliament’s Joint Committee on Human Rights, has since emphasised that political attacks on judges are a “huge threat to the rule of law and the independence of the judiciary”.
In International News
Hungary is due to leave the International Criminal Court on grounds that it has become “political”. This was announced during a visit to Hungary by Benjamin Netanyahu, Israeli Prime Minister, who is the subject of an ICC arrest warrant which was issued on 21st November 2024. Prior to this visit, Human Rights Watch had urged Hungary to deny entry to Netanyahu or to arrest him upon entry, in light of the arrest warrant. Specifically, Liz Evenson, international justice director at Human Rights Watch outlined how Hungary’s Prime Minister Viktor Orbán’s invitation to Netanyahu was an “affront to victims of serious crimes” and urged Hungary to “comply with its legal obligations as a party to the ICC.”
As a member of the ICC, Hungary was in theory obliged to arrest Netanyahu in line with the ICC warrant. However, Orbán had previously said the ruling would have no effect in Hungary. Hungary’s Foreign Minister Peter Szijjártó had notably criticised the warrants as “shameful and absurd” and “unacceptable”. Hungary has aligned itself with other European countries including France, Italy, Poland, Romania and Germany who have emphasised their non-committal to enforcement of the ICC’s warrant to arrest Netanyahu.
In announcing Hungary’s decision to leave the ICC this week, Orbán proclaimed that the ICC had “diminished into a political forum”, something that had “become the clearest in light of its decisions on Israel”. Netanyahu has thanked Orbán for taking a “bold and principled” position against the ICC.
In the Courts
The High Court in R (HJK and Others) v Director of Legal Aid Casework [2025] EWHC 774 (Admin) ruled that four survivors of trafficking who were seeking compensation from the state under the Criminal Injuries Compensation Scheme had been wrongly denied legal aid. Although such claims are excluded from civil legal aid as of right under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, they could qualify for Exceptional Case Funding if failing to provide the claimants with legal aid would breach their ECHR rights.
The claimants’ case succeeded on the basis of their rights under Article 6 ECHR (right to a fair trial). The High Court, in line with judicial authority in Gudanaviciene, determined that Article 6 ECHR would only be relevant to cases where the denial of legal aid would pass a seriousness threshold: namely whether, absent legal aid, an applicant could present their case “effectively and without obvious unfairness” [76]. In other words, the claimants needed to be completely unable to “participate effectively” without legal aid [77]. In this case, the Court determined that the claimants would not be able to represent themselves fairly or participate effectively without legal aid, so the defendant had been wrong in failing to grant it to them. In reaching this conclusion, the Court considered the fact that the claimants spoke limited English [106], helplines were only available in English, sourcing an interpreter would be difficult [109] and finding further evidence to support their claim would both be complicated and potentially traumatising [110].
Alongside their Article 6 ECHR claim, the claimants had also argued that Article 4 ECHR (prohibition of slavery) imposed a positive obligation on the state to provide compensation to survivors of trafficking. However, the High Court rejected this, citing obiter dicta in A and B [2021] UKSC 27 which held that “there is nothing […] to support the existence of a general duty to compensate victims of trafficking perpetrated by private third parties”. The Court’s refusal of the Article 4 ECHR claim also meant there was no “standalone” right to compensation under Article 8 ECHR [145].
This ruling is significant in that it outlines how Article 6 ECHR must be interpreted and applied in the legal aid context. Notably, legal aid assessments must consider an applicant’s ability to engage with the entire process. Further, it clarifies that Article 4 ECHR does not guarantee compensation to survivors of human trafficking.
