Sentencing Guidelines (Pre-sentence Reports) Bill
Wednesday 4th June 2025
(3 days, 17 hours ago)
Lords ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 View all Sentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 99-R-I Marshalled list for Report - (2 Jun 2025)
19:13 - Division on Amendment 2 - Ayes: 65 / Noes: 130 - Amendment 2 disagreed.
Viscount Hailsham
Viscount Hailsham (Con)
My Lords, in moving Amendment 1 in my name, I begin with an apology. I have not previously intervened in the debates on the Bill. Unfortunately, long-standing commitments, including professional commitments, prevented me from participating both at Second Reading and in Committee. That, in fact, is one of the disadvantages, albeit a minor one, of so-called emergency legislation introduced at short notice. More serious disadvantages are, of course, the curtailment of time for reflection and a reduction in the time for consultation. However, I have had the opportunity of studying the Hansard reports of what was said in this House on both occasions, and what was said in the House of Commons.
My main purpose today is to speak briefly to Amendment 1. I begin by commending the admirable speech of the noble and learned Lord, Lord Phillips of Worth Matravers, at col. 1614, to those of your Lordships who, like me, were not present at the Second Reading debate. His speech was a model of brevity and conciseness, and I agree with everything that the noble and learned Lord said. He said that he did not believe that the guidelines introduced two-tier justice. I agree with that view. He said that he did not believe that the introduction of the guidelines would severely damage confidence in our criminal justice system. I share that view.
The noble and learned Lord, Lord Phillips, considered that there was no need for this Bill. I am of the same opinion. In my view, this legislation has been triggered by an unhappy combination of political point-scoring and political back-guarding—personal characteristics of an unwelcome kind, albeit not falling within the statutory definition in the Bill. The noble and learned Lord concluded by saying that we should reluctantly accept this Bill but seek to improve it by way of amendment, and that is what I seek to do.
My amendment is in substance a statement of principle—in fact, one that reflects policy, albeit, because of resource constraints, not the current practice. But given the fact that we have this Bill, I suggest that there is merit in framing the policy in explicit statutory and positive language.
I suspect that everyone who has experience in this field would agree that in the great majority of cases where an offender is facing the possibility of a custodial or a community sentence, it is highly desirable that the sentencer should have available a properly considered pre-sentence report—but not one which is the product of a few minutes of discussion in the cells. What is required is a considered and researched pre-sentence report by a qualified member of the Probation Service. That implies a Probation Service which is properly staffed and properly financed to address the required workload.
I deeply regret that, in recent years, there has been a serious decline in the number of pre-sentence reports, and I have in mind the decline of 42%, from 160,000 to 90,000, between 2015 and 2022, mentioned by the noble Lord, Lord Bach, in the Second Reading debate, and by others too. I acknowledge, with very great regret, that one of the immediate causes of this decline in the availability of proper reports was the policy of the Government whom I supported. I will add too, if I may, that the existence of a properly financed and staffed Probation Service is fundamental to the success of the sentencing reforms proposed by Mr David Gauke.
It should be self-evident that the pre-sentence report addresses all the relevant considerations that may help the sentencer to determine the appropriate sentence. That is what my amendment states explicitly. Such considerations may include the individual circumstances and the personal characteristics of an offender. I accept that, as became apparent in the debate, especially in Committee, there is a distinction between the two concepts, although there is a very high degree of overlap, so both criteria should be included. My amendment does that, with a definition to be found in Amendment 7. Guidelines are there to ensure uniformity in the practice of the courts.
Obviously, there is concern about the availability of resources: hence, the impossibility of making reports mandatory. It was the council’s concern about the inadequacy of resources that caused the guidelines to identify specific cohorts as having priority. But drafting the guidance in the positive language of my amendment meets the expressed concern of the critics of the guidelines. My amendment provides for the guidelines to be general in their application, and might encourage the Government to ensure that additional resources are made available to the Probation Service, so that pre-sentence reports become the norm in all appropriate cases. Amending the Bill in the modest way that I have proposed will, I hope, make a small contribution to the proper administration of criminal justice in this country. I beg to move.
Lord Beith (LD)
My Lords, I agree very much with what the noble Viscount has said. His amendment, like others in this group, would give some helpful clarity to an extremely unclear piece of legislation. I think we are about to make bad law, because the Government have been unable or unwilling to define what “personal characteristics” are. We do not know what will fall within the range of prohibitions placed on the Sentencing Council. It will be left with an undefined scope and an undefined extent. Race, religion and belief, or cultural background, whatever that is, are listed, but after that it becomes a matter for speculation as to what might be included.
The Government insist that the list that appears in the Bill is non-exhaustive. In a letter sent to several of us, the Minister states, but without citing any authority, that “personal characteristics” include sex, gender identity, age, physical disability and pregnancy or “other similar conditions”. What is similar to pregnancy? I have been puzzling over that for some time and I am not quite sure.
The Minister did not mention autism, a background of local authority care or experience of sexual abuse, although in the latter case the Government said, in a different letter, that it is not a personal characteristic to have been a victim, perhaps a repeated victim, of sexual abuse. What is included in the list appears to be in the minds of Ministers, or whatever may appear in the minds of Ministers at some later date, leaving the Sentencing Council and, indirectly, judges and magistrates in some confusion as to what the Government intended.
I think and hope that, in making decisions about whether to call for a pre-sentence report, courts will not be influenced by this whole row—it would be very unfortunate if they were—but there is just a slight risk that this may become an area in which courts start to think, “This is a bit political, we’d better not go there”. That must not happen. The still-existing freedom of courts to decide to have a pre-sentence report is not directly affected by the Bill. My worry is that it might have an indirect effect.
Law can have consequences. I foresee the day when a non-exhaustive list of prohibitions will appear in some other Bill on some other subject. What will happen then? We will be told that non-exhaustive lists of prohibited actions are an established practice and appeared in the Sentencing Guidelines (Pre-sentence Reports) Act 2025. It will become a precedent that will certainly get used on some future occasion, and I think that is a dangerous thing to be happening.
My noble friend’s Amendment 2 restores the Sentencing Council’s freedom, if there is good cause, to issue guidelines that refer to personal characteristics. I urge support for it and, if he presses it to a vote, which I hope he will, he will certainly have my vote and, I hope, those of others who are concerned to protect the ability of the Sentencing Council, a body of some distinction, to do its job in the light of sensible judgment, following discussion with the Government wherever that is necessary or appropriate.
I turn finally to Amendment 9, which is in my name. The Minister has asserted that pregnancy is a personal characteristic, falling within the restrictions imposed by Section 2 of the Bill. But there is case law accepting pregnancy as a reason to order a pre-sentence report, in R v Thompson 2024. Modern slavery was similarly referred to as grounds for a pre-sentencing report in R v Kurmekaj 2024, and being a young offender is dealt with in R v Meanley 2022.
It is difficult to accept that the case law should be overridden by the Bill if it becomes an Act. The Minister has asserted that it is overridden, asserting in his letter that the Bill would make
“such direction about obtaining PSRs across existing guidelines unlawful”.
“Unlawful” is the word used in the Minister’s letter. Nevertheless, he claimed that
“it will not prevent guidelines from reminding sentencers in more general terms that PSRs will be necessary”
when
“an assessment of the offender’s personal circumstances would be beneficial”.
So where does that leave us? It leaves us in a tangle of legal uncertainty, and there is no excuse for that. I suggest that the Minister should accept my amendment, leaving the Sentencing Council free to issue guidelines that reflect and draw attention to well-established case law on the value and importance of pre-sentence reports in cases of the kinds I referred to.
Baroness Hamwee (LD)
My Lords, I confess that I am still struggling to understand this Bill, despite it having only one clause. The Minister was as helpful as he could be in Committee, and we all know his pedigree, but he has been dealt a very difficult hand. I think this is a bad Bill and, as my noble friend has just said, it is going to be bad law. We all know the political background to it. On Monday, at Second Reading of the Border Security, Asylum and Immigration Bill, one noble Lord used the delicate word, which I will repeat, “presentational”. I think that is quite a good synonym. The Constitution Committee has commented on the Bill, picking up very much the points that the noble Viscount and my noble friend made and the response from the Ministry of Justice has not, I think, taken us any further.
In Committee, I asked what was meant by the words “framed by reference to”. I still do not really understand them. This has caused me to table Amendment 3, although I realise it is a bit risky pursuing this, because we may be told from the Dispatch Box that the Bill is more restrictive than we would actually want to see, and it is arguable that as it stands, the guidelines can refer to characteristics depending on the law which is being shaped.
The legislation should be clear and certain—points which were made very clearly by the Constitution Committee—especially in this sort of situation. It is curious that the Bill seeks to pit the state against a body such as the Sentencing Council.
Lord Garnier (Con)
My Lords, like my noble friend Lord Hailsham, I begin my remarks by apologising for not having been able to attend the earlier stages of the Bill. However, I am happy to say that, like my noble friend, I have read the report and I am reasonably up to date with the way in which the debates have gone.
I am very much attracted by what my noble friend said in support of his Amendment 1, and I speak from a position of some—but not a great deal—of experience as a sentencer. I was a recorder of the Crown Court for 15 years, from 1998 until about 2015, with time off when serving in the Government. One of the things I found most useful in dealing with what I thought was the most difficult task as a judge was the advice and help of the sentencing report.
If you are a High Court judge, you tend, if you are dealing with criminal cases, to deal only with life sentence cases. The job that you have to do when sentencing is to consider the tariff within the life sentence. This is difficult but not, perhaps, as complicated as having to deal with the multiplicity of sentences involved in road traffic cases, drug cases, dishonest acquisition cases, and so on, and obviously cases to do with assault and other forms of violence.
As a recorder, as a Crown Court judge and as a magistrate—I see the Minister, the noble Lord, Lord Ponsonby, is in his place—one is dealing with, in a sense, a much more complicated sentencing picture. The assistance of sentencing reports is huge and valuable. Anything that the Bill can do to make the life of the sentencer easier and to enable him or her to produce a juster sentence is to be welcomed, and the suggestion of my noble friend Lord Hailsham through his Amendment 1 provides the sort of assistance that I would very much have wished to have had as a low-level sentencer. It is perhaps more neatly encompassed in the suggestion through Amendment 2, tabled by the noble Lord, Lord Marks.
Either way, both amendments appear to me to be trying to undo the political mess that has caused the arrival of the Bill. I understand the politics of all this; I am sure we all do. It is a thoroughly unnecessary Bill, one that the Government allowed themselves to be backed into a corner about. It may well be that they regret it. However, given that we have got the Bill, I invite the Government to pay close attention to the speech of my noble friend and to listen very carefully to my chambers colleague, the noble Lord, Lord Marks, when he comes to speak to Amendment 2.
Lord Meston (CB)
My Lords, I have not spoken before on the Bill, and frankly, like others, I was rather astonished that this was a topic requiring legislation at all. Like the noble and learned Lord, I have been what you would probably call a low-level sentencer for a number of years.
I will make two points. First, in recent years, in my experience, the quality of pre-sentence reports has greatly improved: from what were sometimes formulaic and feeble reports to nowadays, in my more recent experience, really providing an insight into the defendant’s background, life and attitudes, and conveying realistic recommendations. To that extent, they must always be regarded as helpful, greatly improving on, as the noble Viscount described, representations made by the legal representatives after a few moments in the cells or in the court corridor before coming into court.
Secondly, this experience has led me to adopt the attitude that, whenever in doubt, a report should be directed. I, for one, never regretted directing a report. For that reason, I certainly support Amendments 5 and 6. In other words, pre-sentence reports should, wherever possible and sensible, be the norm.
Lord Carter of Haslemere (CB)
My Lords, I have not previously spoken on the substance of the Bill before, either, but I am very attracted by the noble Viscount’s amendment, for the reasons that he and the noble and learned Lord, Lord Garnier, have set out.
I think the Government have accepted that their Bill is not intended to prevent sentencers inviting pre-sentence reports in the case of personal characteristics. They are getting at the guidelines that should not take account of personal characteristics. However, there is a danger that, as the Bill stands, sentencers might be deterred slightly from seeking pre-sentence reports in the case of personal characteristics, even though, were the Bill not on the statute book, they would otherwise have done so.
The amendment of the noble Viscount, Lord Hailsham, sorts that out. It makes it absolutely clear that there is nothing to stop the sentencer seeking a pre-sentence report in the case of personal characteristics, if that is desirable for the purposes of the particular case. That is exactly what the legal position should be.
So, I strongly urge the Government to give close attention to Amendment 1 and indeed the amendment in the name of the noble Lord, Lord Marks, which, as has been said, seeks to achieve the same thing. This is consistent with what the Government think their Bill allows for, but there is a danger that it might not have the effect they seek, whereas the noble Viscount’s amendment would clarify the position in what everyone must agree is the right way.
Lord Hardie (CB)
My Lords, I, too, have not spoken before on the Bill. I understand the sentiment behind the noble Viscount’s amendment. As a former judge in Scotland, I do not demur from the advantage of having such reports. However, I wonder whether there is an element of confusion in the various amendments. In the sense that the noble Lord, Lord Carter, seemed to suggest, there may be confusion in the mind of the sentencer as to whether he or she can order a report.
I do not read this clause as being that. Clause 1(2) specifies that the guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender. The personal characteristics are defined in Clause 3 as including race, religion or belief, and cultural background. So, I would have thought that it is irrelevant to determining a sentence that someone is of a certain race, or adheres to a certain religion, or has a certain cultural background. What one wants to know is something about the upbringing of the individual, whether he or she was abused as a child, and whether there are other circumstances in his or her upbringing that would explain his or her behaviour. So I do not see the need for the amendments that simply reinforce the position that already exists.
Lord Marks of Henley-on-Thames (LD)
My Lords, before turning to Amendment 2 in my name, I will make a number of points that are relevant to the general difficulty of this Bill, highlighted by all the amendments in this group, and relevant to the unsuitability of legislating for what the Sentencing Council may or may not recommend in guidelines as to when pre-sentence reports should or should not be required. I take the point just made by the noble and learned Lord, Lord Hardie, that there is a distinction to be drawn between the guidelines and when a pre-sentencing report is to be required, but there is real scope for confusion, and that does concern us all.
When sentencing, effective judges must inevitably take into account the personal circumstances of individual offenders, alongside the nature of their offences, the requirement to punish and the need for deterrence. When taking into account those personal circumstances, they are bound to consider their different personal characteristics. So, the drafting of this Bill starts with a conflict that is, on analysis, almost impossible to resolve.
The Government tried to clarify what is meant by personal characteristics in an all-Peers letter just before Committee, in which the Minister cited the words of the noble and learned Lord, Lord Neuberger, in the House of Lords as the precursor of the Supreme Court, when he said that
“the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”.
This might assist a court to consider in a judicial context what words may mean, but it does not necessarily help with the construction of the meaning of a Bill. No clear distinction can be drawn between what a person is by birth and what a person may have become by reason of life experience. For example, is a woman pregnant because of what she is or because of what has happened to her? Is a black person scarred by racism suffering because of what they are or because of what has happened to them?
That difficulty is compounded by the fact that the list of personal characteristics in Clause 1(3) is non-exhaustive. They are said to
“include, in particular … race … religion or belief
or
“cultural background”.
But that does not exclude anything else—a point that has been made by my noble friend Lord Beith and by others throughout the discussion of this Bill. The use of the phrase “framed by reference to” was also rightly criticised by my noble friend Lady Hamwee as hopelessly uncertain. That was in the context of her proposing her Amendment 3, but it runs through the whole of this issue of personal characteristics.
The Lord Bishop of Gloucester
My Lords, like other noble Lords, I have already registered my feelings about the Bill at Second Reading and in Committee. Now that we have had the publication of the Independent Sentencing Review and the Government’s response, I reiterate the point that, like others, I simply do not believe that we need this legislation. It seems that the left hand is not aware of the right hand on the evidence around sentencing.
I agree with what has been said already. Amendment 8, in my name, seeks something very specific: to ensure that existing sentencing guidelines relating to the mitigating factor of pregnancy, childbirth and postnatal care can continue to provide directions for courts to obtain pre-sentence reports for offenders who are pregnant or primary carers of young children. Without this amendment, the Sentencing Guidelines (Pre-sentence Reports) Bill directly contradicts the Government’s stated policy intent to reduce the imprisonment of pregnant women and mothers of young children.
On 22 May, in her response to the Independent Sentencing Review, the Lord Chancellor explicitly stated the Government’s intent to reduce the imprisonment of pregnant women and mothers of young children. She said:
“I am particularly keen to ensure that pregnant women and mothers of young children are not anywhere near our female prison estate in future”.—[Official Report, Commons, 22/5/25; col. 1204.]
Indeed, the Independent Sentencing Review
“recognises the harm caused by imprisoning pregnant women and believes pregnant women and new mothers should be diverted and supported in the community, unless in exceptional circumstances. Custody must only be a last resort”.
How, then, are we to achieve this, when the Bill makes unlawful the existing Sentencing Council’s mitigating factor—pregnancy, childbirth and postnatal care—which came into force on 1 April 2024 and directs courts to obtain PSRs for pregnant and postnatal offenders? I am very grateful to the Minister for writing after Committee, but he confirmed—extraordinarily—that the Bill will render such direction about obtaining PSRs across existing sentencing guidelines unlawful. I query his assumption that, without direction, sentencers might request a PSR. This is a backward step. Simply put, without a pre-sentence report, alternatives to custody cannot be considered by a sentencing court. Without a mandatory direction to obtain a PSR, there is no way to ensure that women are diverted from custody. Without this amendment, the Bill directly contradicts the Government’s stated policy intent. I recognise the very difficult position that the Minister has been put in, but I am simply looking for the Government to have the grace to admit this contradiction and to accept this amendment. It does not have to be seen as a humiliating backing-down, but, rather, a humble response to listening.
I will not delay the House further. I will listen to the Minister’s response in due course, but I am minded, at this point, to divide the House. However, I might need some careful direction, should other amendments be passed, as to where that leaves my Amendment 8.
Lord Thomas of Cwmgiedd (CB)
My Lords, I wish to add a few sentences to what the right reverend Prelate said. I preface that by noting that, when we built the Sentencing Council, the legislation was discussed and agreed. It was clear when this Bill was introduced that discussion and agreement were needed. I find it very disappointing that we have not been able to get together to find a satisfactory way to deal with this legislation other than by dropping it—I regard that now as gone.
I think it important that Ministers appreciate what the right reverend Prelate said. It is plain that pregnancy and maternity are characteristics, and one ought to ensure that all judges receive the same guidance as to obtaining pre-sentence reports. I know that the Minister and the Lord Chancellor are very keen that pregnant women do not go to prison, but they are not the law; the law is laid down by this unfortunate legislation. If there is one thing we can do to ensure that it does not wreak injustice, it is to allow the amendment proposed by the right reverend Prelate. There is a huge amount more that we should do, but, without a consensus and discussion between us, I do not believe that we can make any improvement. That is why I content myself with this very narrow point. We cannot be in a position where we cannot give guidance to courts that they should get a pre-sentence report to avoid sending pregnant women to prison.
Lord Sandhurst (Con)
My Lords, I thank all noble Lords who contributed to the Bill’s progress in Committee. In particular, I acknowledge the thoughtful and constructive contributions from the noble and learned Lord, Lord Burnett of Maldon. We have heard further thoughtful contributions today, not least from the noble and learned Lord, Lord Thomas of Cwmgiedd, and the right reverend Prelate the Bishop of Gloucester.
None the less, from this side of the House, I wish to place on record our broad support for the principles that underpin the Bill. The use of pre-sentence reports, when applied rigorously, consistently and with due regard to the individual circumstances of the offender, is an essential part of a fair and effective justice system. They play a crucial role in informing judicial discretion, ensuring proportionality in sentencing and helping to reduce the risk of reoffending through appropriate rehabilitative measures. We welcome the intention of the Bill to strengthen and clarify the expectations around the preparation and consideration of pre-sentence reports. These seek to embed good practice across the system and to promote greater consistency in the court’s approach to sentencing.
However, while we on this side support the direction of travel, we remain mindful that sentencing is a complex and sensitive area of the law. It touches not only on legal principle but on human lives, social outcomes and the effective operation of our prison and probation systems. In that context, I will take a moment to acknowledge a specific concern raised by noble Lords in Committee: the lack of clarity around the term “personal characteristics” as it appears in the Bill. This is not a small point. If the legislation is to provide clear and workable guidance to practitioners, including report writers and the judiciary, we must be precise about what we mean. Any doubt or uncertainty in this area risks inconsistent application. It undermines the very consistency and fairness that the Bill seeks to promote. I hope that the Government will reflect carefully on these concerns and consider whether further definition could be usefully provided.
More broadly, I echo the view expressed at earlier stages that, with just a little more time and careful consideration, we could strengthen and improve this legislation further. There remain questions that would benefit from additional scrutiny, and we should proceed with care. We must get this right, not only in the interest of justice but for the confidence of the public, the judiciary and those working on the front line of our criminal justice system. We on these Benches remain committed to working constructively with the Government, with noble Lords across the House and with all those who bring experience and insight to bear on this important issue.
I will turn briefly to the amendments in the first group. As for Amendments 1 and 7, spoken to by my noble friend Lord Hailsham, we recognise that Amendment 1 seeks to provide clarity about the range of matters that the sentencer may take into account. We invite the Government to consider these during the Bill’s journey through the other place.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to noble Lords for their continued and careful consideration of this Bill. Before I turn to each amendment in this group, I want to briefly recap why we have brought the Bill forward.
In revising its imposition guideline, the Sentencing Council included text that suggests that a pre-sentence report will
“normally be considered necessary”
if an offender belongs to certain cohorts, including some that specifically refer to offenders’ personal characteristics, such as those
“from an ethnic minority, cultural minority, and/or faith minority community”.
We believe that the approach taken through this guidance risks offenders receiving differential access to pre-sentence reports based on their personal characteristics. It also means that the Sentencing Council is making policy on who should get a pre-sentence report, when this is properly a matter for Ministers and Parliament to decide. For these reasons, we have introduced this Bill to stop this guidance coming into force and prevent the Sentencing Council making similar guidance in the future.
I turn to the amendments in this group. First, there are those amendments which seek to give the Sentencing Council more discretion to include some factors that are based on offenders’ different personal characteristics. Amendments 1 and 7, from the noble Viscount, Lord Hailsham, with contributions from the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Carter, seek to give the Sentencing Council more discretion. The Sentencing Council could still make guidelines with reference to personal characteristics but only if the guidelines also said that those personal characteristics had to be relevant to the ultimate sentencing decision.
Amendments 2 and 4, in the name of the noble Lord, Lord Marks, would give the Sentencing Council discretion to include factors based on offenders’ different personal characteristics within relevant guidelines, if it felt that doing so would avoid inequalities in sentencing outcomes. Amendment 9, in the name of the noble Lord, Lord Beith, is intended to provide that the Bill does not prevent the Sentencing Council including provision within relevant guidelines that reflects existing case law about pre-sentence reports.
During Committee, I committed to take away the concerns expressed by noble Lords about the Bill’s current approach. I have carefully reflected on where there are alternative ways of meeting the Bill’s fundamental objective—to ensure equality before the law. However, ultimately, I remain confident that the current approach taken within the Bill is the best and clearest way to meet this objective. This is because, if these amendments were accepted, the Sentencing Council would be able to continue to produce guidelines that could risk differential access to pre-sentence reports. In doing so, the Sentencing Council would be making policy on a matter that is within the proper remit of Ministers and Parliament. Therefore, we do not believe that these amendments are beneficial, as they would undermine the Bill’s objectives.
I turn to the amendments of the noble Baroness, Lady Hamwee. Amendment 3 would change some of the drafting used in Clause 1. The Bill states that sentencing guidelines about pre-sentence reports may not include
“provision framed by reference to”
offenders’ personal characteristics. Instead, if the noble Baroness’s amendment were to be accepted, the Bill would state that any provision which is “solely based on” offenders’ personal characteristics cannot be included in relevant guidelines. The noble Baroness’s Amendment 6 seeks to add text to the Bill that confirms that it does not prevent the Sentencing Council producing relevant guidelines. This suggests that a pre-sentence report would be ordered where an assessment of an offender’s personal circumstances would be beneficial to the court. I have no doubt that the noble Baroness has suggested these amendments in the spirit of attempting to make the Bill as clear as possible, and I am grateful for the constructive challenge. I have carefully considered both amendments and we ultimately believe that they would not improve the Bill’s drafting.
For Amendment 3, this is because the Bill is already sufficiently clear. The drafting, which would prevent the Sentencing Council making sentencing guidelines about pre-sentence reports
“framed by reference to different personal characteristics”,
means that the council cannot include any text within relevant guidelines that refers to offenders’ personal characteristics. This effectively captures our intent, which is to ensure equality before the law. For Amendment 6, the Bill as drafted does not prevent the Sentencing Council including text within relevant guidelines that suggests to sentencers, in general terms, that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. We have been clear throughout the debates and in supporting material of the benefits of pre-sentence reports. We believe our intention is clear from the language we have used in the Bill. In the spirit of keeping the Bill short and simple, we do not consider it necessary to explicitly state within the Bill things that it does not do. The Bill does not prevent sentencing guidelines encouraging pre-sentence reports based on an offenders’ personal circumstances.
Amendment 8, tabled by the right reverend Prelate the Bishop of Gloucester, seeks to ensure sentencing guidelines can continue to advise sentencers to seek pre-sentence reports in cases involving offenders who are pregnant or who are primary carers of young children. I should like to start by thanking the right reverend Prelate for raising this point. I have long been an advocate for better support for pregnant women in prison and for those women who are primary carers of young children, ever since I first sat outside HMP Styal with my mother, taking foster children to see their mums on visits. I know all too well that so many of the foster children who I lived with had mothers in prison who were often victims of considerable trauma and abuse, and they were often vulnerable, addicted and mentally ill. Many found imprisonment had life-changing impacts, for not only them but their children.
Around two-thirds of female offenders sentenced to custody receive short sentences and around the same number are victims of domestic abuse. I proudly chair the Women’s Justice Board, which was set up last year with the aim of closing a women’s prison and addressing the specific needs of this cohort. The sentencing review’s recommendations on short, deferred and suspended sentences will reduce the number of women in prison. This is an important step towards that objective.
However, in the context of this specific Bill, following the Committee debate, I have further considered whether it would be appropriate to add an exclusion. Amendment 8 would allow the Sentencing Council to retain existing wording across relevant guidelines that suggests sentencers request pre-sentence reports for pregnant and post-natal offenders. We remain satisfied that the Bill’s current approach is the right one. It ensures sentencing guidelines do not risk preferential access to pre-sentence reports based on offenders’ personal characteristics. In doing so, it prevents the Sentencing Council making policy on who should get a pre-sentence report.
To be absolutely clear, this does not mean we think pregnant or post-natal women should not be receiving pre-sentence reports. We fully support the ability of sentencers to make their own judgment on whether to order a pre-sentence report, based on their consideration of the unique circumstances of individual cases. That is why nothing in the Bill stops courts requesting pre-sentence reports in any case where they ordinarily would do so. This includes appropriate cases involving pregnant or post-natal women, as well as other individuals who may be vulnerable for a number of reasons.
The key distinction here is that we cannot support any suggestion within sentencing guidelines that access to pre-sentence reports should be based on offenders’ personal characteristics. It is for this reason that we have been clear throughout the Bill’s passage that it does not affect the existing obligation on courts, under section 30 of the Sentencing Code, to obtain a pre-sentence report, unless considered unnecessary.
I want to re-emphasise that, following the Bill’s passage, the Sentencing Council can still remind sentencers in general terms that pre-sentence reports are necessary when, among other things, a full assessment of an offender’s personal circumstances would be beneficial. I would like to clarify that, even without a pre-sentence report, alternatives to custody can be considered by a sentencing court. Pre-sentence reports are by no means the only route through which alternatives to custody are considered, and women are diverted away from custody.
I hope I have reassured noble Lords about the Government’s sentiment with regard to better support for pregnant women and primary carers currently in prison and about our clear policy intention to reduce the number of women in prison. I therefore encourage noble Lords not to press their amendments in this group.
Lord Beith (LD)
Before the Minister sits down, could he clarify something for me, because he has made two apparently conflicting statements in the course of the correspondence? One is that it would be unlawful—and that is his word—for the Sentencing Council to frame guidelines in a way that reflected the existing case law that pregnant women should be the subject of pre-sentence reports. But he has just said, and has said on other occasions also, that the Sentencing Council can issue guidelines or statements of some kind which draw attention to that pre-existing case law. The purpose of my amendment was to leave the Sentencing Council free to do so. How can he, at one and the same time, say that this would be unlawful and then describe this way of carrying it out?
Lord Timpson (Lab)
These are different things and we do not want to link them. The Bill intentionally deals with the Sentencing Council, not the Court of Appeal. The Bill as drafted achieves its aims simply, and we do not want to overcomplicate things.
Viscount Hailsham (Con)
My Lords, the noble Lord, Lord Marks, has indicated to your Lordships that he proposes to test the opinion of this House on Amendment 2. I am a pragmatist. I want to see the Bill improve to further the objective that I have explained to your Lordships. That being so, I am perfectly content to rally behind Amendment 2. I therefore beg leave to withdraw Amendment 1.
Member's explanatory statement
This amendment, together with Lord Marks’ amendment to page 1, line 7, would allow the Sentencing Council more discretion in preparing sentencing guidelines about pre-sentence reports in order to avoid inequality of sentencing outcomes.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his response. However, I do not believe that the proposed guidelines that the Bill seeks to make unlawful were inimical to equality before the law. Nor do I believe that the Bill advances—indeed, I believe it is hostile to—the attempt of the Sentencing Council to advise judges as to how to address the inequality of outcomes that bedevils our criminal justice system. My amendments are an attempt to assist in the addressing of that inequality, so I wish to test the opinion of the House on Amendment 2.
“(4B) Sentencing guidelines about pre-sentence reports must promote greater use of such reports as part of sentencing, in particular when the sentencing decision is likely to involve a choice between a community penalty and imprisonment.”Member's explanatory statement
This amendment is intended to encourage increased use of pre-sentence reports.
Lord Marks of Henley-on-Thames (LD)
My Lords, in the first group, we considered what we regard as the unsatisfactory nature of this Bill. My Amendment 5 is directed to ensuring that guidelines promote the use of pre-sentence reports as a general rule. As has been mentioned, there has been a very serious decline in the use of pre-sentence reports. As the Minister said in Committee and others have said today—notably, the noble Viscount, Lord Hailsham—there has been a 44% reduction in the number of pre-sentence reports ordered and produced over the last decade. That flows in part from the effect of a recognised lack of resources for the Probation Service to produce these reports over that period.
Not only that, but the reduction in numbers has been accompanied by a recent decline in the quality of the reports produced by the courts. Although, as the noble Lord, Lord Meston, said, some years back there may have been an improvement in the quality of pre-sentence reports, contemporary evidence suggests that there has been a significant decline over the last 10 years. I do not believe that that decline is attributable to a lack of commitment on the part of individual probation officers. However, we should recognise that the demoralisation that has taken place in the Probation Service has been very serious indeed. That has been partly the effect of the ill-starred changes to and reorganisation of the whole of the probation services, initiated by the previous Government. The later reversal, while welcome, merely proved that the whole experiment was profoundly unsettling and damaging to the probation services as a whole.
But the declining quality of pre-sentence reports has been principally the result of a lack of resources allocated to the production of individual reports, particularly the time probation officers have had to prepare them. These reports need to be thoughtful, and thoroughly and individually researched, with a real assessment of the most appropriate sentences in individual cases. The reports need to consider the individual circumstances of offenders with care, and officers need the time to do that. There needs to be much more opportunity for officers carefully to consider individually suitable community sentences and to research their availability. They need to have the time and resources to consider the conditions that might be appropriately attached to such community sentences, along with the employment and housing, and opportunities and risks, that need to be considered in individual cases.
In discussing these issues, we should not lose sight of the central features of sentencing hearings. Pre-sentence reports are the only real independent sources of information for judges about the personal circumstances of offenders and of the possible disposals and their suitability. Judges cannot get this assistance from speeches in mitigation by defence advocates, however well-researched and argued they might be. That is primarily, of course, because such speeches are delivered on instructions—the instructions of the offenders the advocates represent—and are not, therefore, independent. But it is also because the Probation Service has an unrivalled expertise in advising judges on appropriate sentencing. Given the resources and training that dedicated probation officers receive, they can make all the difference to sentencing and can help offenders to make their best efforts to turn their lives around. This is not only a civilised and humanitarian outcome; in turning offenders away from crime, and in reducing reoffending and the huge personal costs to victims and families associated with it, it brings substantial societal benefit as well.
The case for this amendment is that we need to return to the principle that once underlay pre-sentencing reports in practice, as well as in theory, and certainly in every case where the sentencing decision was between custody and community sentences: that the judge should have pre-sentence reports of the highest quality possible in all such cases. During the course of the noble Lord’s tenure as Prisons Minister, he has made it clear that it is his ambition to bring more investment into the Probation Service and to increase the number of probation officers—which should also improve, I would add, the retention of probation officers within the service and raise standards generally. For us, this is a crucial issue.
I am very grateful to the Minister for his constructive engagement with me and others during the passage of the Bill. If he can convince us from the Dispatch Box—I am very hopeful that he will—that his ambition is also the Government’s ambition for the Probation Service and pre-sentence reports, I will not press my amendment to a vote. However, the converse also follows. I await what the Minister has to say in response. I beg to move.
Lord Sandhurst (Con)
My Lords, I may be brief, having made my general observations in respect of the previous group. So far as this amendment is concerned, in appropriate cases, pre-sentence reports are of course necessary—but not in all cases. The probation officer is usually the best person to alert the court to the possible benefit of obtaining a report, or not obtaining one, in a given case. In some cases, the sentencer will also want a report, whether or not the probation officer has indicated that a report might assist. We on this side are of the view that we do not need this amendment.
Lord Bach (Lab)
My Lords, I agree entirely with what the noble Lord, Lord Marks, said about pre-sentence reports. A long time ago, I had much experience of defending in the Crown Court, so I know that such reports are of extreme and important value. However, I have to say—for the first time, really—that I agree with the noble Lord on the Front Bench opposite, who just said that he does not see the need for this amendment. With great respect to the noble Lord, Lord Marks, I do not see it, either, I am afraid. I know that the noble Lord needs to be satisfied by the Minister, who will no doubt follow what I have to say, but, in my view, the Government’s policy on pre-sentence reports is clear: they are in favour of them, and we need to improve them because they have been allowed to go downhill in the past number of years. I agree with that. My view is that this amendment is not something that should divide the House.
Lord Timpson (Lab)
Amendment 5 in the name of the noble Lord, Lord Marks, would require sentencing guidelines about pre-sentence reports to encourage their greater use, particularly in cases where a sentencing decision is likely to involve a choice between a community or custodial sentence. I am grateful to the noble Lord for moving this amendment. He was right to ask how we can encourage greater use of pre-sentence reports and ensure that we have sufficient probation resource to do so, and he made exactly the right points in speaking about the importance of pre-sentence reports. I am grateful to him for the discussions that we have had since Committee; I would welcome continued engagement with him on this issue.
I hope that the noble Lord will not mind me giving quite a full answer to his question. Although he asked the right question, I would argue that there are other levers beyond sentencing guidelines that are the better place to solve the problem. We must ensure that we have a Probation Service that is properly funded and staffed, and which has the tools it needs to deliver. We must also balance the need for sufficient and thorough pre-sentence reports with the other crucial roles that the Probation Service plays. We want more, and better-quality, PSRs.
I am mindful that the noble Lord tabled a similar amendment in Committee, where I took the opportunity to set out the steps that the Lord Chancellor and I are taking to improve the Probation Service’s capacity to deliver timely and high-quality reports. I would like to reassure noble Lords further on the steps that we are taking to support our Probation Service; if they will permit me, I will endeavour to give a thorough answer as to what the Government are doing.
First, we are increasing staffing levels. We recruited more than 1,000 new trainee probation officers last year and we aim to recruit a further 1,300 this year.
Secondly, I am delighted that we have announced a significant increase to the budget for the Probation Service and other community services for offenders. It will rise by up to £700 million by 2028-29, representing an increase of around 45% by the final year of the spending review period. This is a very significant investment and demonstrates the Government’s commitment to this vital service. I am sure that the noble Viscount, Lord Hailsham, will agree that this is needed to fund probation in a way that ensures that our probation officers can do the job they came into the service to do.
Thirdly, I am convinced that a significant part of the answer sits with new technology. The Lord Chancellor and I recently hosted a tech round table with industry experts to make sure that we are asking the right questions and working collaboratively on the best solutions. Let me give noble Lords a sense of some of the transformative impact that we are already exploring in terms of technology.
I am passionate about ensuring that probation officers are able to do the job they came in to do. For probation, as with every other public service, new technology has the potential to be really transformative. We are exploring the benefits of AI in a number of areas. We are piloting the use of transcription and summarisation tools to reduce administrative load. We are developing algorithms to support decision-making, risk assessment, case prioritisation and operational planning. AI-powered search is being explored to better support the information gathering needed for report writing. All these have the potential to save significant practitioner administration time and to improve quality, allowing probation officers to focus on face-to-face time with offenders, to support them to change, rather than on administrative tasks.
Technology can also transform how probation staff can bring the right information together to assess and manage offenders. For staff writing pre-sentence reports, we are rolling out a new service called “Prepare a case for sentence”, which links probation systems with the court’s common platform and gives probation staff in the courts the earliest possible notice of cases that are being listed, as well as new templates so that reports are timely and give the courts what they need.
We are also investing in the complete redesign of the approach to the assessment of risks, needs and the strengths of the people on probation and in prison. The resulting sentence and risk management plans will combine a new assessment and planning approach that incorporates the latest desistance research, supported by a new digital service. This new service will reduce the resource burden on front-line staff and ensure that assessment and planning practice better supports individuals, thereby achieving better rehabilitation and public protection outcomes.
Noble Lords will recognise that, although investment in staff numbers and technology are vital foundations, it is nothing without also supporting staff to have the right skills to spot risks and needs and to communicate those to the court. Our staff have access to a wide range of learning and development, including modules relating to court-specific roles and skills, ensuring that they are well equipped to work in this setting. The better trained they are, the better PSRs they will present.
The Probation Service has a dedicated court case assessment tool for line managers to quality assure pre-sentence reports. His Majesty’s Inspectorate of Probation also completes regular inspections of probation regions, with an assessment of court work included as a key component of this. Furthermore, the Probation Service seeks detailed feedback from sentencers on the quality of reports through an annual judicial survey. Through all this investment and improvement, our aim is that, whenever a court orders a pre-sentence report, it can be confident that it is based on the fullest information and a thorough analysis of risks and needs; and that it answers the right questions the court is wanting to understand.
I recognise that the noble Lord’s amendment now specifically refers to scenarios where a sentencer will likely need to decide between imposing a community or a custodial sentence. I completely agree with the noble Lord that pre-sentence reports can be particularly helpful in these kinds of cases. These reports provide sentencers with an effective assessment of risk and targeted assessments of the individual’s needs. This then confidently articulates suitable sentencing proposals that balance public protection, punishment and rehabilitation. In doing so, they will consider a range of disposal options, setting out the best use of credible community sentences where appropriate.
I hope that it will offer some reassurance to the noble Lord that the revised imposition guideline already includes relevant texts in this spirit, which the Bill does not impact. Specifically, it states:
“A pre-sentence report can be pivotal in helping the court decide whether 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”.
Of course, it is for the sentencer to decide whether to order a pre-sentence report, and there is an existing obligation on courts to obtain a pre-sentence report unless they consider it unnecessary. The Bill does not change that.
I reiterate my thanks to the noble Lord, Lord Marks, for raising the importance of pre-sentence reports and increasing their use. As I have set out, the Government are committed to ensuring greater funding, capacity and efficiency for the Probation Service. I therefore urge the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for his helpful and detailed response. As I hoped he would, he has given an outline of the Government’s very real commitment to more and better pre-sentence reports. He has also detailed the considerable investment that the Government propose to make in the Probation Service and in the production of such reports. I completely agree with him as to the future role of technology in the Probation Service and in the production of these reports. In that spirit, I respectfully ask leave to withdraw the amendment.
“but do not include pregnancy or maternity.”Member's explanatory statement
This amendment seeks to ensure that existing sentencing guidelines relating to the mitigating factor of “pregnancy, childbirth and postnatal care” can continue to provide directions for courts to obtain pre-sentence reports for offenders who are pregnant or are primary carers of young children.
The Lord Bishop of Gloucester
I am minded not to move this, given what we have seen already, but I did just want to say to the Minister that there has been real confusion here, and I am really disappointed that this is undermining something that is already in existence. The Minister said the pre-sentencing guidelines are saying one thing, and the Bill is saying another. I am very disappointed, but I am not going to move this amendment.