In 1894 Maria Hermann, an Austrian-born prostitute stood trial at the Old Bailey for the murder of a client. The evidence seemed overwhelming and she faced a death sentence if convicted. But she had the remarkable good fortune to be defended by Edward Marshall Hall, the greatest criminal advocate of the day. He produced evidence of the wretched life which had led her into a life of poverty, prostitution and degradation. At the end of his closing speech Hall slowly turned and looked towards the dock.

‘Look at her, members of the jury. God never gave her a chance, won’t you?’

The jury cleared her of murder, and in convicting her of manslaughter added a recommendation for mercy; a recommendation acted on by the judge who imposed a remarkably lenient six-year sentence.

Of course pleas in mitigation to case-hardened judges do not often require the oratory of Marshall Hall, but Hermann’s case demonstrates that a defendant’s personal circumstances have always had the capacity to engender mercy from sentencers.

It is against that background that we need to see the Sentencing Council’s revised guideline which came into force this week. It requires judges in most types of cases to consider a defendant’s ‘difficult and/or deprived background or circumstances’ as a possible mitigating factor.

The Lord Chancellor, Alex Chalk, has called the guidance ‘patronising,’ and the so-called ‘Minister for Common Sense,’ Esther McVey, and her plain-speaking husband, Philip Davies MP, have both denounced it still more forcefully.

The minister described the new guideline as ‘disgraceful,’ and speaking to GB news yesterday Mr Davies, called it ‘an outrage.’ The members of the Sentencing Council, he said, were ‘lefties’ pursuing a political agenda:

‘You’ve got 15 unelected, unaccountable members of the Sentencing Council, in effect the great and good of the liberal elite in the legal profession, deciding for themselves on no basis whatsoever… that a whole swathe of the population can now get lighter sentences.’

The ‘unelected and unaccountable’ members comprise eight judges (ranging in seniority from the Lady Chief Justice to a District Judge) and the DPP, a senior KC, representatives from the Police and the Probation service, a legal academic and an adviser to the Welsh government on sexual and domestic violence. It is certainly a committee dominated by high-flying and respected members of the legal profession, who could perhaps be characterised, one hopes correctly, as ‘the great and the good.’ I doubt whether they would be improved by their replacement with unsuccessful or downright bad lawyers, nor by a test of political beliefs designed to weed out potential lefties. The non-judicial members of the Council are in fact appointed by the Lord Chancellor, but not – again one hopes – on the basis of their political affiliations.

Certainly if the Sentencing Council has been trying to promote soft sentences it has been remarkably ineffective. The average length of a prison sentence in England and Wales has risen from 13.4 months in 2009 when the Council was established, to 22.4 months in 2022. Britain now has the highest prison population per capita of any country in western Europe.

Of course there have been many changes in sentencing policy over the years that have had nothing to do with the Sentencing Council: harsher sentencing legislation and an increasing readiness by the Attorney General to refer ‘unduly lenient’ sentences to the Court of Appeal have played a large part too. But the Council’s guidelines have made it much easier to identify which sentences are likely to be considered unduly lenient, thereby deterring individual judges from passing them.

The new guidance will actually have very little impact in practice. The Sentencing Council ran a consultation exercise before it was published. It is true that on the whole the judges it consulted were unenthusiastic about including ‘difficult or deprived background’ as a mitigating factor. But this was largely because, they said, in appropriate cases they already did so anyway.

Clearly there are some cases when the horror of the crime outweighs any possible mitigation of a difficult personal background. Nobody is suggesting that a murderer should always receive a lighter sentence because he had a difficult childhood. But you do not have to be part of a lefty liberal elite to believe that when someone stabs their partner in a moment of rage after enduring years of domestic – or as in Maria Hermann’s case, sexual – abuse it is surely right that the severity of the sentence should sometimes be mitigated. Indeed even Ms McVey herself – whilst raging against the guideline – asserts that ‘judges should always be free to make decisions based on the facts of the case in front of them.’ All the guideline does is ensure that judges consider the defendant’s personal circumstances.

Whilst an offender’s background may have some relevance to almost any sentencing decision, for less serious offences, it is often very important indeed. That is not because a person’s background should provide them with what Ms McVey calls a ‘get out of jail’ card. It is because amongst the generally recognised purposes of sentencing one of the most important is to try to rehabilitate offenders. How does one pass a rehabilitative sentence without knowing something of the defendant’s personal background? To ignore it means giving up all hope of rehabilitation. Where is the common sense in that?