Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Burnett of Maldon Excerpts

Tuesday 10th June 2025 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I pay tribute to the late Lord Justice William Davis. We learned of his death over the weekend with deep sadness. His integrity, clarity of thought and unwavering commitment to fairness made him a towering figure in the field of criminal justice. His loss will be felt across the entire legal and judicial community, although most immediately by his family, to whom we send sincere condolences.

From these Benches, I express our thanks to all those who contributed to this Bill in Committee and on Report. The quality of that debate, if I may respectfully say so, was exemplary, echoing and always meeting the high standards that this House sets when dealing in particular with matters of criminal justice, with the expertise we have on all sides of the Chamber.

These Benches offer our support for the principles underpinning this legislation. The more effective use of pre-sentence reports will encourage informed and consistent judicial discretion and lead to better sentencing outcomes, reducing reoffending, encouraging rehabilitation and serving the interests of public safety. While this Bill is therefore a very good first step, we look forward, together with other noble Lords around the Chamber, to other initiatives in this area. Sentencing remains a complex and sensitive area of the law because it touches individual lives and the life of the community. We believe that this Bill provides a strong foundation and are confident that it will be implemented to good effect. We therefore support the Bill and look forward to it being implemented as part of a justice system that is fairer, more consistent and more effective.

Finally, on a more personal note, the Minister noted that this was the first Bill which he has taken through the House. I agree with the noble Lord, Lord Marks of Henley-on-Thames, that we may disagree politically but these Benches recognise that the Minister not only shares a commitment to a fair and modern criminal justice system but has practical experience in this area. Where possible, we will of course work constructively together, as we did on this Bill.

[Lord Burnett of Maldon (CB)]

My Lords, I first associate myself with the words of those who spoke in tribute to Lord Justice William Davis. News of his death on Saturday morning reached his fellow judges, and former judges, like a thunderclap. He really was tremendously admired and liked. He would take on any additional role that either I or, now, the Lady Chief Justice asked him to assume. He did so smilingly and always with good humour. He will be much missed.

I also associate myself with noble Lords who paid tribute to the Minister for the way this legislation has been piloted through Parliament. I say that despite personally not considering it necessary. It followed the firing off of a letter from the Lord Chancellor at the first whiff of political grapeshot, but we are where we are. In particular, I thank the Minister and his team for the personal courtesy that they showed me in discussing a number of issues that arose in the course of the Bill’s passage. It is perhaps a pity that the Government accepted no amendments in the end, from any noble Lord, but I entirely understand the political imperative for that. Like others, I congratulate the Minister, if that is not thought to be impertinent, on the way in which he conducted this Bill and, more generally, on his debut in this House.

[The Deputy Speaker (Lord Ashton of Hyde) (Non-Afl)]

The Minister has the right, but not the duty, to reply.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Burnett of Maldon Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

[Baroness Hamwee (LD)]

My Lords, I tabled the next amendment in this group, Amendment 3, but, having had a conversation with the noble and learned Lord, Lord Burnett of Maldon, I hope that we might hear from him, as I think he would be very helpful to the Committee at this point. I say that in case anyone looks at me and wonders why I am not speaking at this point.

[Lord Burnett of Maldon (CB)]

My Lords, I am extremely grateful to the noble Baroness, Lady Hamwee, for that suggestion. I hope not to detain the Committee for long. I declare some interests at the outset. When I was Lord Chief Justice, I was president of the Sentencing Council and thus responsible for appointing all its judicial members, with the concurrence of the Lord Chancellor. The Lord Chancellor appointed all the lay members with my concurrence. Like the noble Baroness, Lady Chakrabarti, I was present at the Second Reading debate but did not speak. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke, and we considered that, for the sake of all those there, one former Lord Chief Justice was probably enough.

In one way or another, all the amendments in this group seek to confine or define what is meant by the term “personal characteristics” in the Bill. As all noble Lords will have noted, the term is not defined in the Bill and, in accord with various noble Lords who have tabled amendments, my strong view is that it needs a definition. Although there is no definition in the Bill, the Explanatory Notes try to provide some further explanation. They use the term “demographic cohort” as a synonym for personal characteristics, and they contrast “personal characteristics” with “personal circumstances”, but neither of those terms is in the Bill or defined.

In the Second Reading debate, the Minister said:

“The Bill states that personal characteristics include race, religion or belief, and cultural background, but these are examples and not a comprehensive list. ‘Personal characteristics’ is intended to include a wide range of characteristics, such as sex, gender identity, physical disabilities and pregnancy status”.—[Official Report, 7/5/25; col. 1625.]


The amendment in the name of the noble Baroness, Lady Hamwee, explores what might be meant by “cultural background”, which is, of course, a term that came from the Sentencing Council’s draft guideline. Like others, I find it an extremely elastic and elusive concept. However, the inclusion of pregnancy status as a personal characteristic illustrates the problem caused by the lack of a statutory definition.

A few minutes later, in the same debate, the Minister said:

“A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women … To be clear, nothing in the Bill prevents judges requesting pre-sentence reports for pregnant women, nor will it affect Court of Appeal case law, which states that a pre-sentence report is desirable in the case of pregnant or postnatal women”.—[Official Report, 7/5/25; cols. 1626-27.]


With the greatest of respect to the Government, this exposes a degree of incoherence. The Government’s view is that pregnancy is a personal characteristic. It follows that, if this Bill passes in its current form, it would be unlawful for the Sentencing Council to include it in a guideline on pre-sentence reports; and that it would thus be unlawful for the Sentencing Council to give guidance that reflects judgments of the Court of Appeal. Is that really what the Government are trying to achieve? The right reverend Prelate the Bishop of Gloucester, who sits directly opposite me, has an amendment to deal with that extraordinary outcome.

Although the Government have shied away from defining “personal characteristic” in the Bill, they have not had such inhibition in correspondence both to the Constitution Committee, on which I serve, and to all Peers. In a letter to all Peers, in a long section headed “Definition of ‘personal circumstances’”, the Minister explains that the European Court of Human Rights uses the term when considering, for the purposes of Article 14 discrimination, whether a person enjoys another status; the noble Baroness, Lady Chakrabarti, has already referred in passing to some of the jurisprudence on that matter. However, if I may say so—in complete agreement with the Government—that term in the Strasbourg case law has no crisp definition, and it does not do so for very good reasons.

The Minister refers in his letter to jurisprudence in the House of Lords, where, in the context of Article 14, my noble and learned friend Lord Neuberger of Abbotsbury—I am glad to see that he is in his place—and my noble and learned friend Lady Hale provided assistance with the meaning of “personal characteristics”. In his letter, the Minister approbates the interpretation of my noble friend Lord Neuberger, who 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”.

If it is the Government’s view that those wise words of the noble and learned Lord, Lord Neuberger, provide the kernel of a definition for the term, “personal characteristics”, why on earth is it not in the Bill? It matters because the correspondence goes on to suggest that the observations of both the noble Lord, Lord Neuberger, the noble and learned Baroness, Lady Hale, and also, historically, Lord Steyn, would be a legitimate aid to construction to assist the Sentencing Council. I emphasise that it would not be a legitimate aid to construction should the matter ever find its way to a court—that is to say, the noble Lord’s letter, rather than the observations of the noble and learned Lord, Lord Neuberger.

That comment, if I may respectfully say so, perhaps illustrates a faint misunderstanding in the Government. It is not only the Sentencing Council that needs to understand with clarity what the term “personal circumstances” means. All those who respond to consultation put out by the Sentencing Council must also be able to understand what it means. In these fevered times, it is not impossible that there might be a challenge to what the Sentencing Council has put in a draft guideline, and which might emerge in a final guideline. So, a court will have to—at least perhaps—interpret this phrase.

It is with that in mind that I support all or any amendments that seek to bring some clarity to what “personal circumstances” means in this context. Without a definition, I fear that the Government are storing up trouble for the future.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 3 and 12 in this group. Like other noble Lords, I am sure, I have found myself very torn. I basically oppose the Bill, but we are having to deal with it today at the level of detail.

I am sorry not to be able to go absolutely all the way with the noble Baroness, Lady Chakrabarti, but I am worried about the term “protected characteristics”. Perhaps this is taking too short-term a view, being too aware of the baggage that the term carries at the moment, but I have a nervous reaction against using a term which is in particular legislation for a particular purpose.

The noble and learned Lord, Lord Burnett, mentioned the report of the Constitution Committee, of which I am also a member, which recommended that

“the Bill should be amended to ensure appropriate legislative certainty and clarity”,

going on to say there should be

“a full definition of the ‘personal characteristics’ on the face of the Bill or … an alternative term which is clearly legally defined”,

and also commented on retrospectivity. If the Bill is intended to apply to guidelines which are already operational, this should be explicit in the Bill.

Over the weekend, I thought about another approach to this. It was too late to table it as an amendment, but as we will come back to this clause—essentially, the whole of the Bill—on Report, I thought I would float it now. I found myself increasingly intrigued by the phrase

“framed by reference to different personal characteristics”.

Does that mean that the guidelines can include some characteristics if they are not the frame for them? Does it mean framed alone or only by reference to personal characteristics? I want to get rid of the Bill entirely, as I have said, but anything that will ameliorate the effects is worth looking at.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I understood from the noble Lord’s explanation of the amendments that this group is about parliamentary oversight. I am not clear from Amendment 9 whether the submission of guidelines to the Secretary of State is submission for approval. I am also interested in the fact that, as I read the amendment, the Secretary of State would be required to give effect to the guidelines. That raises a question: is the Secretary of State required to give effect to them whether or not she agrees them? I cannot resist this opportunity to say that we all refer to regulations as if they are a panacea but we all know that amendment to them is very rare.

[Lord Burnett of Maldon (CB)]

My Lords, I shall make one or two observations on this group. I echo what the noble Baroness, Lady Hamwee, said, but, before anyone considers this additional process, it is important to have in mind what already exists. All guidelines that the Sentencing Council eventually issues are subject to extensive consultation—with the public consultation and with interested bodies—but, more importantly, they are subject to political consultation. That arises in two quite different contexts.

The first is that the Lord Chancellor and Secretary of State for Justice are consulted. Of course, that happened in connection with this guideline, which became controversial although it was not seen as controversial by Ministers who were then in the Ministry of Justice. That is not the end of the political involvement, though, because a statutory consultee for all sentencing guidelines is the Justice Committee of the House of Commons. Again, in this particular instance, the Justice Committee was consulted. As all here know, that committee comprises Members of Parliament from a broad cross-section of parties, and, as it happens, they, too, thought it uncontroversial. So there are those two political consultees. However, that is not the end of the matter because the Secretary of State for Justice and Lord Chancellor have on the Sentencing Council itself an observer who is able, on behalf of the ministry, to raise any matters of concern.

So, with respect to the noble Lord, Lord Sandhurst, and this amendment, it seems to me that upsetting the extremely carefully calibrated scheme enacted by the 2009 Act is unnecessary.

[Lord Beith (LD)]

My Lords, I do not recollect a regulation-making power that requires the Secretary of State to bring forward the regulations. Normally, such powers are permissive—the Secretary of State “may” bring forward regulations—or indicate an area where there must be regulations but the precise ones are brought forward at a decision by the Secretary of State.

More generally, I worry that, per the phrase used by the noble Baroness, Lady Chakrabarti, this looks a bit like clipping the wings of the Sentencing Council rather than recognising that it is a valuable arm’s-length body with processes—they have just been helpfully described by the noble and learned Lord, Lord Burnett—that ought to serve the purpose of ensuring that the Government are not blindsided by things that come from the Sentencing Council; indeed, they need not have been in this case. Going much further and introducing this fairly complex mechanism runs the risk of making the Sentencing Council appear less authoritative to those who have to take account of what it does.

Crown Court Criminal Case Backlog

Lord Burnett of Maldon Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Burnett of Maldon (CB)]

My Lords, I join others in congratulating the noble Baroness, Lady Longfield, on her instructive maiden speech.

The outstanding case load in the Crown Court has reached a level that is irretrievable without a radical change to the way in which many Crown Court trials are conducted. I will repeat just a few figures. In January 2019, the outstanding case load was 33,000; it rose to 40,000 as Covid lockdown engulfed us in 2020, and by the end of September 2024, it was over 73,000. The December figure will soon be published by the Ministry of Justice, and there is no doubt that it will be significantly higher. The backlog continues to grow because the volume of cases coming into the system has greatly increased, and there is no sign of that volume diminishing. The proportion of cases taking more than a year to conclude in the Crown Court has roughly doubled over the same period.

All those involved in the system are working hard to iron out problems that result in too many hearings, ineffective trials or late guilty pleas—and much else that has been referred to. I am afraid that those changes and improvements will not solve the problem, but they would help. Similarly, extra sitting days would not solve the problem but would help.

There is an obvious solution, and in this I respectfully disagree with the noble Lord, Lord Carlile, who must be congratulated on securing this debate. A substantial proportion of cases that can be tried either in the magistrates’ court or in the Crown Court, but which currently go to the Crown Court, should be decided in that court by the same composition that deals with appeals from the magistrates’ court—a judge and two magistrates. Obvious cases for such trials would be all offences that carry a maximum of two years’ imprisonment. It is the accident of the maximum sentence that enables a defendant to elect for jury trial.

Many other cases—including drugs offences, criminal damage, regulatory offences and others where, on conviction, the sentence would inevitably be non-custodial or a short term of imprisonment—might also be considered for such trials. Such trials would take hours rather than a couple of days, because that is how long they take in the magistrates’ court. Perhaps more importantly, many of the tactical not guilty pleas that are entered in the Crown Court at the moment would evaporate.

The limit on these speeches today, which I notice I have reached, makes it impossible to develop the arguments or deal with the reasoned arguments in opposition. But, having pondered this question for some time, I note that this solution, first mooted 25 years ago by Sir Robin Auld, stands a good chance of reversing what is otherwise an inexorable decline.

Courts: Backlogs

Lord Burnett of Maldon Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I completely agree with my noble friend: public confidence is absolutely paramount. That is one reason why jury trials were persisted with—quite rightly—during the Covid period. Having said that, there are certain types of cases where it is maybe not appropriate that a jury trial should be available. I anticipate that Sir Brian is looking at those sorts of cases.

[Lord Burnett of Maldon (CB)]

My Lords, the current outstanding backlog in the Crown Court is a little over 73,000; it was only 40,000 when Covid struck. The Minister has already indicated that the volume of cases coming into the Crown Court continues to increase. Has any solution occurred to him or his colleagues other than to restrict the right to jury trial for the relatively low-grade cases of the sort that the noble Baroness, Lady Hazarika, spoke of, which clutter up the Crown Court?

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord makes a very fair point. It is regrettable that the numbers are so high and are increasing—that is the underlying problem with which we are grappling within the Ministry of Justice. It is interesting that in the family court system we are back down to the pre-Covid numbers; that is good, and we are trying to bear down on that further. Nevertheless, the noble and learned Lord makes a very good point and I am sure that Sir Brian Leveson will address these points.

Legal Aid: Social Welfare and Family Law

Lord Burnett of Maldon Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I will undertake to look at that. I am not aware of it in detail; I know that various pilots have been undertaken. I will write to the noble Lord.

[Lord Burnett of Maldon (CB)]

The noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Bach, have referred to the cost that falls on the courts as a result of the removal of legal aid for parents in dispute over their children. That is robbing Peter to pay Paul. I wonder whether the Government could take account also of the wider costs of the removal of legal aid in family cases which flow because parents at war are not as economically effective as they would otherwise be. People at war become ill, and there is untold damage done to the children as they are caught up in protracted disputes that need not happen. When the Minister is undertaking the review he referred to, would he take those matters into account?

[Lord Ponsonby of Shulbrede (Lab)]

I think the noble and learned Lord has hit the nail on the head. Private family law hearings are a destructive process. It is not unusual for situations to get worse for the people engaging in them, in my experience. Having the legal representation helps the court, and it is something I hope we can work towards over time. However, there are other initiatives, such as the pathfinder project, such as early legal advice, such as mediation vouchers, which we would like to use to divert couples away from the court system where it is appropriate and there is not risk to the children.

Prison Capacities

Lord Burnett of Maldon Excerpts

Thursday 12th September 2024 Lords Chamber

[Lord Burnett of Maldon (CB)]

My Lords, I add two points to those already made. First, there is much talk of prison capacity, but it is important to appreciate the difference between capacity in the sense of how many can be crammed in and the real capacity of our prisons. The Ministry of Justice has its own “baseline certified normal accommodation”, designed to provide decent accommodation. At the end of August, its figures suggested that it was about 8,500 over that baseline—perhaps fewer today. The adverse consequences are well understood. Its baseline, in its own words,

“represents the good, decent standard of accommodation”.

When does the ministry expect to achieve that level of decency and return to its baseline?

Secondly, overcrowded prisons risk the courts seizing up. During my final months in office as Lord Chief Justice, I received daily prison figures, broken down region by region. There was a risk that people being remanded into custody or sentenced would have nowhere to go—and, if they cannot be taken away, the work of the court is paralysed.

We have seen two interventions by the senior judiciary to delay cases that were likely to result in custody to avoid that eventuality. There are also prisoners being located far from courts in which they are appearing, resulting in transportation problems and delays in their hearings. I observed to colleagues on more than one occasion that we were only one riot away from meltdown—and so, alas, it has transpired.

Severe overcrowding in our prisons has a multiplicity of adverse consequences beyond the most obvious. There is little realistic prospect of substantially expanding prison capacity in the near term. That is, in any event, the wrong solution. The record number of those in custody must come down.