Sentencing Guidelines (Pre-sentence Reports) Bill

Jeremy Wright Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

The Lord Chancellor has just given us, very helpfully, the list of matters that might be relevantly considered in a pre-sentence report. As she has said, however, one of the items on that list is “personal circumstances”, and that is what the Bill will remove from the Sentencing Council’s discretion. May I ask her why she has not used in the Bill the language that is included in the explanatory notes? Paragraph 8 states that the Bill will

“prevent differential treatment… It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort”.

That strikes me as a much narrower exclusion, and perhaps one better targeted at the problem that the Lord Chancellor has, in my view, rightly identified.

[Shabana Mahmood]

The right hon. and learned Gentleman is right. That is why we have offered the additional context in the explanatory notes. Personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and the different definitions of the two have sometimes slipped. I wanted to make it clear in the Bill that we are constraining the Sentencing Council’s ability to create guidance for PSRs in relation to personal characteristics. We refer in the Bill to race, religion, culture and belief, specifically to ensure that the Sentencing Council understands that we are targeting this part of the offending section of the imposition guideline. It will then have its own interpretation of how personal circumstances and personal characteristics should apply. I would expect this to be analogous to protected characteristics in the Equality Act 2010, in terms of the way in which the courts are likely to approach the question of what a personal characteristic is for the purpose of the Bill.

However, I wanted to make the intention behind the Bill very clear to the Sentencing Council, and to everyone else. It is tightly focused on the offending section of the imposition guideline and leaves the wider question of personal circumstances untouched. As I will explain later in my speech, there is helpful Court of Appeal guidance on circumstances and on other occasions on which a PSR should normally be required, and nothing in the Bill will affect the Court of Appeal precedents that have already been set.

--- Later in debate ---

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

It is important in this debate to be clear what we are talking about and what we are not. The part of the guideline produced by the Sentencing Council that led to this legislation relates to the circumstances in which a pre-sentence report is produced, not to the passing of a sentence itself. It is also important not to overstate the problem. As we have heard, there is already law that says there should be a pre-sentence report in almost all cases, unless it is unnecessary, and most offenders being considered for either a community or custodial sentence—in the Crown court, at least—already have one.

The guidance that the Sentencing Council produces on the ordering of a pre-sentence report, though, does matter. That is because such a report is designed to give sentencers more information about the person they are sentencing. Without that information, it can be very hard to apply the full range of sentencing options. That might be about whether a rehabilitation activity requirement or a programme requirement might be appropriate, or to assess capacity for unpaid work. If a sentencer does not order a pre-sentence report for a particular offender, they may not be able to impose some of the more demanding community sentences and may find themselves more likely to impose a custodial sentence as the only available and realistic alternative. It does matter whether a sentencer is being encouraged to order such a report for an offender, and any guideline suggesting that this should be more appropriate for someone of one ethnicity, faith or culture, as opposed to another, cannot be right.

I accept that the Sentencing Council was trying to do good, but in reality we do not address inequality by replacing it with a different inequality. The Sentencing Council has misjudged this issue, and the Government are entitled to come to that view too. It would have been better if legislation was not needed to resolve this issue, but the Sentencing Council, independent as we know it is, has clearly concluded that it will not do as the Lord Chancellor has asked, and that means that legislation is the only realistic alternative. However, I have concerns about the way in which the Government are going about this, particularly in the breadth of the drafting of the Bill. I mentioned in an intervention on the Lord Chancellor one specific concern, which I will not go over again in view of the time, but which we might return to in the later stages of the Bill.

I think it is worth Ministers considering whether the use of the phrase “personal characteristics” is too broad. The Chair of the Justice Committee read out some of the other personal characteristics referred to in the draft guideline, which I do not think are anywhere near as controversial. We need to keep in mind that this is about a process in which a sentencer is given information about an offender in order to determine the appropriate sentence. I do not think that information about faith or ethnic origin would fall into the appropriate category, but information about health conditions or disabilities most certainly might.

There is a danger of throwing the baby out with the bathwater: not all personal characteristics should be left out of account in sentencing. I therefore ask Ministers to consider whether they can tighten the wording of clause 1(2) and (3) in particular. If they do so, I think that will avoid some rather arcane discussions about what can be properly described as personal circumstances and personal characteristics. However, I also think there is a danger of losing sight of the good work that the Sentencing Council does.

I accept that this will not be a universally popular point of view, but I do think that the Sentencing Council adds something important to the sentencing process. It is important that we do not lose sight of that, or of the fact that the guideline that has been drafted is to replace substantially out-of-date guidance. I hope that point will also be noted by Ministers.