Sentencing Guidelines (Pre-sentence Reports) Bill

Andy Slaughter Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

Let me begin by summarising how we got here. On 29 November 2023, the Sentencing Council launched a consultation on proposed changes to the imposition of community and custodial sentences guideline. On 19 February 2024, the then Minister for Sentencing, the hon. Member for Orpington (Gareth Bacon), wrote to the chair of the council and welcomed its work on the revised guideline, in particular the

“fuller guidance around the circumstances in which courts should request a pre-sentence report”.

On 28 March 2024, the then Chair of the Justice Committee, Sir Bob Neill KC, wrote to the chair of the Sentencing Council noting that the council had conducted a particularly effective consultation exercise.

On 5 March 2025, a year later, the Sentencing Council published the revised guideline, saying that it would come into effect on 1 April. The same day saw the first exchange in this Chamber between the Lord Chancellor and the shadow Lord Chancellor, the right hon. Member for Newark (Robert Jenrick), on the guideline. The accusation by the shadow Lord Chancellor that the guideline would

“make a custodial sentence less likely”

for those from an ethnic minority, cultural minority and/or faith minority community was not the view of the Sentencing Council, but the exchange led to extensive correspondence between the Lord Chancellor and the chair of the Sentencing Council for the rest of March.

I do not have time today to describe the contents of those letters, but the central point raised by the chair of the Sentencing Council was that the purpose of a pre-sentence report is to provide information, not to determine the sentence. He said:

“Frequently the information provided will not assist the offender’s prospect of avoiding a custodial sentence: rather the reverse.”

He added that the guideline does not make a custodial sentence less likely for someone simply by way of their membership of a cohort; that the guideline

“does not instruct or mandate judges and magistrates to request a pre-sentence report”

but is discretionary; that the list of cohorts is “non-exhaustive”; that a pre-sentence report “may be necessary” for those outside the list; and that,

“The section of the guideline relating to pre-sentence reports is directed to the issue of information about offenders, no more and no less.”

On 31 March 2025, following a meeting with the Sentencing Council, the Lord Chancellor said she was going to introduce legislation to render the section on cohorts unlawful. The guideline was due to come into force on 1 April. As a result, the council said that it would delay the date on which the guideline was due to come into force, pending such legislation taking effect.

On 1 April 2025, this Bill was given its First Reading. The Bill is designed to make it unlawful for a sentencing guideline issued by the Sentencing Council to include a presumption that a pre-sentence report should be obtained based on the offender’s membership of a particular demographic cohort. The Bill has one operative clause, clause 1, which would amend section 120 of the Coroners and Justice Act 2009. The drafting of clause 1 indicates that the provision will apply to all sentencing guidelines that have been issued by the Sentencing Council and that are already in force when the provisions in this Bill take effect.

The Bill states that guidelines produced by the Sentencing Council cannot include provision framed by reference to “personal characteristics”. The Bill then specifies that

“‘personal characteristics’ include, in particular…race…religion or belief…cultural background.”

The list is non-exhaustive and therefore also covers other personal characteristics—for example, age, disability, sex and sexual orientation. Clause 1 would therefore render unlawful the following cohorts that were included in the imposition of community and custodial sentences guideline issued on 5 March:

“a young adult…female…from an ethnic minority, cultural minority, and/or faith minority community…pregnant or post-natal…has disclosed they are transgender…has or may have a serious chronic medical condition or physical disability, or mental ill health, learning disabilities…or brain injury/damage”.

The explanatory notes state that the Bill does not prevent the Sentencing Council “from issuing guidelines advising courts to consider the offender’s personal circumstances in deciding whether to request a PSR”.

The explanatory notes also state that the Bill does not affect Court of Appeal case law on the circumstances where a pre-sentence report is either necessary or desirable. It then cites three cases:

“Thompson…which says that where a woman who is pregnant or has recently given birth is to be sentenced, it is desirable for the court to obtain a pre-sentence report;…Meanley…where the court referred to the importance of PSRs in serious cases involving young defendants; and…Kurmekaj…where the court said that the defendant’s traumatic upbringing, vulnerability and the fact they had been a victim of modern slavery meant a PSR should have been requested”.

The Government have repeatedly emphasised that they object to the inclusion of ethnic, cultural and/or faith minority community in the guideline. The Government have not said that they object to the inclusion of the other cohorts in the guideline framed by personal characteristics. The fact that the explanatory notes make clear that the Government do not intend to prevent the Court of Appeal, or any other body, from issuing guidance relating to pre-sentence reports from being framed by personal characteristics, other than ethnic, cultural and/or faith minority community, would appear to indicate that they do not object in principle to such an approach. I am sure some of these matters can be explored more in Committee.

I will conclude by saying a few words about judicial independence. In his letter dated 10 March to the Lord Chancellor, the chair of the Sentencing Council said:

“There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing.”

The independence of the judiciary is recognised as a principle of fundamental importance to the United Kingdom’s constitution. The principle serves to protect the judiciary’s ability to exercise its functions in deciding cases in accordance with the law and free from external pressures. Deciding on an offender’s sentence is a clear example of that, but the principle of judicial independence also requires that the judiciary is treated with respect and with recognition of the constitutional boundaries between the judiciary, the Executive and Parliament.

Lord Hodge, the deputy president of the Supreme Court, said in 2018:

“Within Parliament it is a parliamentary custom, supported by rulings of the Speaker, that an attack on a judge’s character or motives, or charges of a personal nature or a call for his or her dismissal, should be made only on a substantive motion on which a vote will be taken, and also that arguments that a judge had got a decision wrong should be made in moderate language.”

There has been significant criticism of the Sentencing Council, and in particular its chair, in this Chamber. The shadow Lord Chancellor asked on 1 April in this House if the Lord Chancellor could

“honestly say at the Dispatch Box that she has confidence in the head of the Sentencing Council, Lord Justice Davis, given that he has brought it into total disrepute”—[Official Report, 1 April 2025; Vol. 765, c. 184.]

Criticising the judiciary for their decisions in their capacity as members of the Sentencing Council risks undermining their independence as serving judges.

It remains to be seen whether the measures in this Bill have ripples beyond the narrow prescription in clause 1. I look forward to the Government clarifying the detailed effects of the Bill in Committee, but it would be unfortunate if such a modest piece of legislation left in its wake collateral damage to the relationship between Parliament, the Executive and the judiciary.