Sentencing Guidelines (Pre-sentence Reports) Bill

Baroness Hamwee Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

How can you tailor a community penalty to suit an offender, and have a chance of it working, without a PSR or some kind of expert advice about the disposals and programmes available and about what would suit the offender, including their needs and problems, and, equally, have custody? I really do not think we should be sending people to custody, especially for the first time, without a PSR. I am sorry that I have taken a bit of time, but those are my remarks on the first group.

[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.

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Moved by

[Baroness Hamwee]

2: Clause 1, page 1, leave out lines 5 to 15 and insert—
“(4A) But sentencing guidelines about pre-sentence reports must include provision framed by reference to the factors considered in the case of each offender (“O”) most likely to reduce offending by O.”Member’s explanatory statement
This amendment would ensure that pre-sentence reports include information relating to reducing offending.

[Baroness Hamwee (LD)]

My Lords, I will speak also to my Amendment 8 in this group. We ended the last group by using “preferential” as distinct from “different”. My Amendment 2 is intended to be a positive one. I do not think that factors considered to be most likely to reduce offending by the offender would be preferential. They might be different, but they would be different while responding to the characteristics and maybe circumstances of the offender. The Bill is negative, as some noble Lords said on the last group, and I am sure we all agree about the reoffending point. I accept that is not the only purpose of sentencing but it is perhaps most closely related to pre-sentence reports. So I suggest that that acknowledgement should go up front.

Amendment 8 is also a point of emphasis. Seeking a pre-sentence report is a matter for the court, on the basis that we have been discussing as it is now and as it will be. The Bill is about guidelines on pre-sentence reports. As I understand it, there is no restriction on the content of them—that is a matter for probation to pursue—and neither is there any restriction on what the court in any event orders. I would be very surprised if the Minister disagrees with me on any of this, but I would like to get his agreement on the record. I beg to move.

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[Lord Timpson (Lab)]

My Lords, I am grateful to have the opportunity to speak about probation and reducing reoffending—topics that are very important. I would like to use this opportunity to shine a light on the important work that probation practitioners do to support the sentencing process. I hope I can reassure noble Lords about the processes that are already in place.

I will speak first to Amendment 2, tabled by the noble Baroness, Lady Hamwee. This would require the Sentencing Council to include references to the factors most likely to reduce reoffending in its sentencing guidelines on pre-sentence reports. While I cannot support this amendment, as it would remove the Bill’s prohibition on sentencing guidelines on pre-sentence reports being framed with reference to offenders’ personal characteristics, I agree that the role of probation in supporting reducing reoffending is an important one.

The purpose of a pre-sentence report is defined by section 31 of the Sentencing Code as being a report which

“is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender”.

A completed pre-sentence report will therefore provide sentencers with an effective assessment of risk, alongside targeted assessments of individuals’ needs, by confidently articulating suitable proposals that balance the needs of public protection, punishment and the rehabilitative aspects of sentencing.

Depending on the specific circumstances of the case, the probation practitioner writing the pre-sentence report will obtain information from both the defendant and external sources in respect of mental health, drug and alcohol needs and services, accommodation, finances and youth justice contact, as well as consideration of wider circumstances that could be indicative of additional vulnerability or complexity for the defendant.

A pre-sentence report will always include an assessment of the risk the defendant poses and to whom, including the risk of serious harm and likelihood of reoffending analysis. In making the sentencing recommendation, the pre-sentence report’s author must also consider the purposes of sentencing under the Sentencing Code, including the reduction of crime, and reform and rehabilitation.

The Probation Service has always had to balance public protection with rehabilitation, and striking the right balance is a long-standing part of the culture of the service, which is reinforced by the messages and expectations set not just by senior operational leaders but by me and other Ministers. I hope I can therefore reassure the noble Baroness, Lady Hamwee, that rehabilitative principles have always been, and will continue to be, at the heart of the pre-sentence advice provided to courts, and that she will feel able to withdraw this amendment.

Amendment 7, tabled by the noble Lord, Lord Marks of Henley-on-Thames, proposes imposing a requirement on sentencing guidelines on pre-sentence reports to promote a greater use of such reports as part of sentencing. I share the noble Lord’s desire to see greater use of pre-sentence reports. As I have set out, a good PSR assesses the offender’s behaviour and the risks they pose, and recommends sentencing options tailored to those risks and needs. We know that the number of pre-sentence reports has declined, with a 44% reduction over the last decade.

There have been several reasons for this, but it may well be that judicial perceptions of probation’s capacity to deliver PSRs may influence that decision. Judicial confidence in probation is a key priority for me and for the Lord Chancellor, and I hope I can reassure noble Lords about the steps we are taking to maximise probation’s ability not just to deliver PSRs but to deliver them in a timely way and to a high quality.

First, we are continuing to invest in increasing staffing levels in probation. Last year, we recruited 1,000 new trainee probation officers, and this year we have raised that target to 1,300. That continued investment in staff is helping us fill vacancies, including in probation court teams, where last year we increased our target staffing levels.

Secondly, we are taking steps to increase the capacity of probation staff providing advice to courts. We are beginning to roll out a new digital service, prepare a case for sentence, that links to HMCTS systems and which means that listing information about upcoming cases comes straight to probation staff, rather than having to be looked up and rekeyed into the new system. This in turn will help probation court teams do the right preparation in advance, so they can identify cases in which a court is likely to need further information and have that ready on the day if the court requests a report.

We are also improving access to video-link facilities to promote greater use of remote interviewing, so that, where an offender is remanded in custody and the court adjourns for a pre-sentence report to be written, probation staff can easily carry out an interview to inform the report. Through measures such as these, we can better focus probation staff’s precious time on providing the court with the right information, rather than on chasing up data from partner agencies or having to react to court requests at short notice.

Thirdly, we are trying to maximise the different opportunities for courts to request pre-sentence reports. For example, the PSR before plea scheme allows for a pre-sentence report to be written early on in certain cases where there is an anticipated guilty plea, and it is likely that the defendant will be sentenced in the magistrates’ court.

I hope I have reassured the noble Lord about the Government’s commitment to increasing probation’s ability to provide the best possible advice to courts, and that he will be happy as a result not to press his amendment.

Amendment 8 is intended to prevent sentencing guidelines restricting the contents of a pre-sentence report or interfering with a court order. I take this opportunity to briefly reassure the noble Baroness, Lady Hamwee, that nothing in the Bill as currently drafted, nor sentencing guidelines themselves, will do this. Following the Bill’s passage, sentencers will retain their current discretion to decide whether to order a pre-sentence report in appropriate cases. All the Bill does is ensure that the content of sentencing guidelines about pre-sentence reports does not provide for differential access to pre-sentence reports for certain groups over others.

The Bill also does not impact the types of sentencing options available to the court. Sentencers will retain their discretion to impose the sentence that they consider most appropriate, based on the specifics of the individual case before them and in line with any relevant sentencing guidelines. I hope that the noble Baroness is reassured and that she will not press her amendment.

[Baroness Hamwee (LD)]

My Lords, that was the response I expected, and I thank the Minister for it. On the response from the noble Lord, Lord Sandhurst, I shall take the sympathy. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[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.