Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I echo the eloquent tributes to the noble and learned Lord, Lord Etherton, from the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Phillips of Worth Matravers. He will be greatly missed not only by those in this House who have had the privilege of hearing him over recent years, but by the wider legal public and the public in general.

It is with great pleasure that I join others in praising the excellent maiden speech of the noble Baroness, Lady Nichols, particularly, if I may say so, the very personal account she included in it. It was also a great pleasure to hear from the noble and right reverend Lord, Lord Sentamu, the Yorkshire perspective on the noble Baroness’s contribution to public life.

Nothing I have heard today has persuaded me that this Bill is either necessary or sensible. We on these Benches regard it as an overreaction to a difference, little more than a misunderstanding at the outset, between the Lord Chancellor and the Sentencing Council. What is more, it is a misunderstanding that could and should have been sorted out informally, by discussion and compromise, without resort to emergency legislation, as the noble Lord, Lord Bach, said.

We believe that this Bill proceeds from a false premise—a fallacy, indeed—that that the Sentencing Council has produced guidelines that depart from the principle that everyone is equal before the law. We in this House all believe in equality before the law. The argument advanced for the Bill is that if PSRs are obtained more readily for particular cohorts of offenders, those offenders are less likely to go to prison, which, so the argument goes, amounts to two-tier justice. But as my noble friend Lord Beith pointed out, this Bill is about the provision of pre-sentence reports, not sentencing offenders differentially. PSRs are written to assist judges in making the right sentencing decisions.

I suggest that the two-tier justice argument misrepresents what equality before the law means. What it means is the courts treating everyone alike, with neither fear nor favour. That is the significance of the saying that justice is blind and of the iconic statue that tops the Old Bailey. It is about applying the law even-handedly.

It does not mean ignoring the evidence—still less skewing the evidence by depriving the court of the ability to do justice on the basis of all the available evidence and information, and so weakening the ability of the court to dispense justice. The underlying reality, which this Bill ignores, is the glaring inequality of outcomes in our criminal justice system, whereby offenders from ethnic minorities have historically been far more harshly treated by sentencing courts. They are far more likely to go to prison than their white counterparts, and, as the noble and learned Lord, Lord Phillips, pointed out, for longer.

For the evidence of that, one has only to read the well-researched and well-argued 2017 final report of the Lammy Review, as mentioned by the noble Baroness, Lady Mattinson, and the noble and learned Lord, Lord Phillips. The noble Baroness, Lady Jones of Moulsecoomb, was among many who reinforced this important point. The Bill does nothing to address that reality—far from it. It ignores three very real truths.

The first is that PSRs are the only reliable way that judges can obtain a full and true account of the individual circumstances of the offenders they are called upon to sentence. These reports are a vital source for judges of independently collated information about those individual circumstances, which they need to take into account when deciding between imprisonment or a community sentence. They cannot get such information from speeches in mitigation, however well-constructed and presented by defence counsel, because they are made on defendants’ instructions and cannot be verified.

The second truth is that, as the Minister reminded us, while PSRs ought to be before judges in every case before sentencing—certainly in every case where a prison sentence is possible but not inevitable—their availability in practice has substantially declined in recent years. The reason for that is uncontroversial. Resources for the Probation Service have been progressively reduced and mismanaged by government over the years. The Minister reminded us that the number of PSRs has reduced by 44% over 10 years.

The third truth is that the quality of the reports that have been produced has declined as the time allowed to probation officers to produce individual reports has been reduced, allegedly to save money. My noble friend Lady Hamwee and the noble Lord, Lord Bach, spoke in some detail of the present weaknesses of many reports. We thoroughly welcome the Government’s commitment to increasing resources for the Probation Service generally and for the provision of more detailed and thorough PSRs in individual cases in particular.

I agree with the noble Baroness, Lady Nichols, that we should be making thorough pre-sentence reports available for all offenders where the options are custody or a community sentence, to enable the court to have the fullest material about individual circumstances of offenders when sentencing. Where I part company with the Government and the noble Baroness, Lady Nichols, is that it neither logical nor defensible to say, “Well if we can’t afford reports for all those at risk of prison, we will forbid the judges to prioritise the most vulnerable groups in the interests of an artificial equality”. Yet that is what this Bill proposes. I agree with the right reverend Prelate the Bishop of Gloucester that it is plain wrong to forbid prioritising pre-sentence reports in the face of a lack of resources.

That is not to uphold equality before the law in the face of a misguided guideline. It is to prevent the Sentencing Council performing its function in the most helpful way possible by addressing the inequality of outcomes that bedevils the system as it operates at present. It is all very well for the Minister to say that the causes of unequal outcomes are presently unknown, but there is a mass of evidence to the contrary.

Even the proposition that doing without PSRs saves money is deeply flawed. If, following the logic of the two-tier justice argument, more PSRs lead to fewer custodial sentences, then PSRs do not increase public costs; they save the public money. No one denies that prison is far more expensive than community sentences. That is true on all the evidence, even leaving out of account the knock-on effects of imprisonment on prisoners’ families, housing, employment and dependence on the state, and the effects of all that on the public finances.

Then there is the clear evidence that community sentences are far more effective than prison at reducing reoffending. Reoffending costs the public purse on the average estimate about £18 billion a year. If PSRs are more widely available, then that may contribute to a reduction in reoffending and so a saving of resources.

The Bill raises two constitutional issues. The Constitution Committee has considered this Bill and has prepared a report, which has technically been published today, but of course no one has had time to read or consider the report. That rush is relevant to the first constitutional issue, which is an issue on which the committee criticised this Bill—the use of fast-track emergency legislation once any emergency has passed.

As we know, the Sentencing Council paused implementation of the guidelines, specifically to give this Parliament time to take a view. This Bill has no place being treated as emergency legislation. It has been rushed at every stage. The rules about time lapse between stages are designed to allow time for reflection and consultation between stages, not just in Parliament but outside. This Bill has suffered from a lack of both.

The second constitutional issue is this: while I accept that Parliament has the power and right to legislate to alter the powers or functions of the Sentencing Council, the council is itself a creature of statute and that power ought to be exercised with great caution. The Sentencing Council was established by the Coroners and Justice Act as an independent body to give advice to judges. Its purpose is to assist the judges in the conduct of their sentencing decisions and to help them to achieve the appropriate level of consistency in sentencing approaches and outcomes. That is a judicial function. It is not sensible for the Executive to interfere. Parliament sets out maximum sentences and a set of rules. But it is dangerous for the Executive to interfere, through introducing an Act of Parliament, with the way the sentencing guidelines are then produced, and to set out what they should or should not contain. That runs some risk of an unwarranted and unhelpful interference by the Executive in the working of the judiciary.

In the House of Commons, Robert Jenrick, the Conservative justice spokesperson, proposed an amendment proposing what was in effect a veto over sentencing guidelines produced by the Sentencing Council. In this House, the noble Lord, Lord Jackson, proposed much the same thing. That is inappropriate.

In addition, the Bill is incoherent in its drafting—what the Constitution Committee politely calls “legislative uncertainty”. I do not wish to go into detail because the points made throughout the House by my noble friend Lady Hamwee, the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope, the right reverend Prelate the Bishop of Gloucester, and the noble Lords, Lord Bach and Lord Verdirame, on personal characteristics are surely right. Are not pregnancy, being transgender and sexual orientation all personal characteristics? They are also circumstances that a sentencing court might want to take into account, as well as ethnicity, particularly where those characteristics give rise to persecution, abuse and psychological and mental health issues. Those are just the kind of factors that might be considered and explained in PSRs. Why should sentencing guidelines not indicate that some of these characteristics are important and make a PSR more valuable to judges?

For my part, I find any distinction between personal characteristics and personal circumstances ill-defined and unhelpful, and I agree with the noble and learned Lord, Lord Hope, and my noble friend Lord Beith that the wording of the prohibition is profoundly unhelpful. I shall not take up the invitation of my noble friend Lady Hamwee to foreshadow at Second Reading amendments that might later be considered. We have heard a number of suggestions for Committee. I would also consider the insertion of the words “without good cause” into the prohibition, to allow for some assessment of what may or may not be sensible. But that is for the next stage of these proceedings, so I shall leave it there.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

[Lord Beith (LD)]

My Amendment 14 in this group, like all the others, seeks to probe and challenge the uncertainty surrounding the definition on which the whole Bill depends. I welcome the amendments of the noble Baroness, Lady Chakrabarti, in that respect. I am particularly attracted by Amendment 5, which goes to the fundamentals of the problem. I hope that will get discussed in the course of our proceedings.

I am a member of the Constitution Committee, like several noble Lords present today, and I share the committee’s concerns about the legislative uncertainty and unhelpful precedent set by the inclusion and non-definition of personal characteristics. The committee said that this clause was insufficiently clear and introduced legislative uncertainty. The list of personal characteristics is, as the Government indicate in their Explanatory Note, non-exhaustive, which leaves a legislative hole. The Sentencing Council is placed under a prohibition: it must not frame guidelines by reference to different personal characteristics. But because the list is non-exhaustive, the council has no way of knowing what other personal characteristics fall within the prohibition.

It is a pretty basic principle of the rule of law that, in order that people should obey the law, they should be able to find out what the law is—but there is no way to find out what are acceptable other personal characteristics, and correspondence with Select Committees is in no way definitive in that respect. You create a body, in the form of the Sentencing Council, that is placed under a prohibition and cannot know the full extent of that prohibition. It is pretty weird—and, I think, very bad—legislative practice.

In his letter to the committee, the Minister indicates a number of things that, in his view, are not personal characteristics, including being a sole or primary carer or a victim of domestic violence. Where is the authority in the Bill to exclude those characteristics but not others, such as autism, neurodiversity or having a background of being brought up in local authority care? There is a whole number of things that might be considered personal characteristics or might not. What is the council intended to do about that?

My Amendment 14 addresses an even more confusing aspect of the personal characteristics problem. Several cases taken to appeal have set out where circumstances or characteristics should have been taken into account in deciding whether to seek a pre-sentence report: pregnancy in Thompson, 2024; modern slavery in Kurmekaj, 2024; and young offenders in Meanley, 2022—I think. A sentencing judge is expected to take account of those cases when deciding whether to seek a pre-sentence report. Of course, as the Minister will point out, the Bill does not directly impact on the court, or on the judge who is passing sentence. In any formal sense it does not change the criteria that the judge will consider while sentencing. But that is a very formal view of that matter—it is difficult to escape the conclusion that this discussion and the passing of this legislation might not have some influence on how judges view their freedom to seek pre-sentencing reports.

What can the Sentencing Council do about this? It appears to me that the effect of the Bill is that the Sentencing Council would be in trouble if it drew attention to the cases to which I have referred and sought to make judges aware that they are relevant to those particular circumstances—autism, a background of local authority care, and all sorts of other circumstances, such as being brought up on a particularly rough estate where there is known to be gangland activity and much likelihood of falling under the influence of violence if they had not carried out the offence. There are all sorts of circumstances like that which might be treated as personal characteristics, but to refer to existing cases that define circumstances in which pre-sentence reports should be used appears to be something that the Sentencing Council is precluded from doing. That does not make any sense to me at all, which is why I have drafted the amendment in that form.

I believe that, as the noble Baroness, Lady Chakrabarti, said, damage has been done to the authority of the Sentencing Council, particularly if we do not amend the Bill to make it legally coherent. The Sentencing Council sought to address a recognised and widely admitted problem about the disproportionate levels of custody sentences imposed on some sections of the community from particular backgrounds. In doing so, it unintentionally created what turned out to be a political problem, and the consequence of that is a disproportionate response from the Government and legislation, which, frankly, does not make sense and will result in legal confusion.

We ought to remember that the sentencing legislation already in existence, the Sentencing Act 2020, makes pre-sentence reports something courts should seek unless they deem it unnecessary to do so. Here we are, creating an aura of doubt around what judges should do when those very circumstances arise, which may be contributing to the disproportionate presence in our jails of people from certain backgrounds. That is careless and shows a lack of awareness of the unintended effects legislation can have. Therefore, we should amend the Bill, make it clearer and try to avoid some of those consequences.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, before I come to the substance of the debate, may I make one more plea to the Government? I agree with the noble Baroness, Lady Chakrabarti, and others in their trenchant criticisms of the Bill. I conclude—and I invite the Government now, even at this late stage, to conclude—that the Bill ought not to proceed before the publication of David Gauke’s Independent Sentencing Review, expected as early as this week. It could and should be withdrawn, or at least paused, to await that report and to allow time for reflection, both on the report and on the Bill in the light of it.

The Government’s own website, in describing the terms of reference for the Gauke review, says:

“The review will provide long term solutions for our justice system by”,


and then the sixth bullet point says,

“considering whether the sentencing framework should be amended to take into account the specific needs or vulnerabilities of specific cohorts, such as young adult offenders, older offenders, and women”,

which is precisely what the in-position guideline, approved by the Sentencing Council and now largely to be prohibited by the Bill, concluded should happen.

The Bill contains a number of difficulties which are addressed in a number of the amendments proposed by noble Lords from around the Committee, all of which are well within the terms of reference of the Gauke review. The first is highlighted by the noble Baroness, Lady Chakrabarti, and is presented by the shortage of resources, about which we all know, which has resulted in a failure to meet the clear and uncontroversial need for judges to have the benefit of full and well-prepared pre-sentence reports for all defendants—certainly for all defendants at risk of custodial sentences. Then there is the central difficulty of the Bill’s ruling out prioritising pre-sentence reports for particular cohorts, such as black defendants, in the face of very strong evidence—cited by the noble Baroness, Lady Chakrabarti—such as that produced by the Lammy review, that black defendants are more likely to be sent to prison than their white counterparts, and more likely to be sentenced to longer terms.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have spoken at length on my amendment in the last group. My amendment here is to suggest, as I believe is completely uncontroversial, that sentencing guidelines about sentencing reports must promote greater use of such reports as part of sentencing. Whether that is a matter for the sentencing guidelines or for sentencers generally, the need for more and better pre-sentence reports is of extreme importance. I believe that everything the Minister has said on this subject since his appointment shows that the Government agree with that position. So I propose to say nothing more about that.

Amendments 3 and 8, to which my noble friend Lady Hamwee has spoken, are non-controversial. Whether they are treated as probing amendments at this stage perhaps matters little, but we are trying here to get across the principles. I do not think there is any need for me to say more on this group.

[Lord Sandhurst (Con)]

My Lords, I will first deal with the two amendments of the noble Baroness, Lady Hamwee. We believe that Amendment 2 is unnecessary; probation officers should be left to get on with their jobs. The Bill does not prevent them addressing matters likely to reduce offending and we should have some confidence that they will share this view when it is necessary and appropriate. Why would they wish not to go down that route? That, after all, is what their job is about: preventing reoffending.

We do not believe that Amendment 8 is necessary, but we are sympathetic to where it goes. Again, this is on the basis that our amendments in group 3, which will bring the guidelines before Parliament, are accepted and acted on, so that Parliament gets to look at what is actually happening in the guidelines themselves.

Again, we are sympathetic to the aims of the amendment of the noble Lord, Lord Marks, but, although reports are necessary in appropriate cases, they are not necessary in every case. It is the probation officer who is best placed to alert the court in cases where a report is not proposed. A probation officer will be in court and can speak to defendants before sentencing in court.

In my experience, having sat in the court myself as a recorder for many years—and even, many years before that, having appeared in Crown Courts on quite a number of occasions—a probation officer is best placed to alert the court to the benefit of obtaining a report, or saying that they actually do not need one in a given case. However, that can be left to Parliament when it looks at the guidelines, if it gets the chance to do so.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group of amendments raises some interesting and quite difficult points. Amendments 9, 10 and 17 were introduced by the noble Lord, Lord Sandhurst, and also proposed by the noble Lord, Lord Wolfson of Tredegar. On first reading, they appear to set out, albeit in a more elegant form—as one would expect, I suppose I should say—the effect of an amendment introduced in the other place by the Conservative shadow Secretary of State Robert Jenrick. Mr Jenrick’s amendment sought to give the Secretary of State—that, is the Executive—a complete veto over the guidelines proposed by the Sentencing Council. His language—I abbreviate it slightly—was that the council must

“obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines”.

That is what appeared in the amendment paper for the House of Commons, to which Mr Jenrick spoke.

That ran entirely across and counter to what we say is the proper constitutional position. The starting point is that the Sentencing Council is an independent body created by statute, with the job of advising judges on sentencing and the functions that I outlined in the debate on group 1. The judges are and must remain independent, and the judicial function is an independent function that must be, and always has been, independent of the Executive and Parliament. That is not to say that there should or should not be parliamentary oversight. Parliament sets the rules; it sets the maxima for sentences, it sometimes sets the minima for sentences, and it sets the political context. But the way in which the relationship between the judiciary, the Sentencing Council and Parliament functions has been explained by the noble and learned Lord, Lord Burnett, and his explanation demonstrates the subtle interrelationship between Parliament and the judiciary in this process. It is carefully drawn, and it is very important that that careful distinction is maintained.

The language in Amendment 9 is rather different from the language in the amendment of Robert Jenrick in the other place. But it is strange and it has a strangeness built into it that my noble friend Lord Beith picked out, because Amendment 9 would provide that sentencing guidelines about pre-sentence reports “must be submitted” to the Secretary of State by the Sentencing Council, and the Secretary of State

“must give effect to those guidelines by regulations”.

The point that my noble friend Lord Beith made was that it is not a matter for the Secretary of State to give effect to any guidelines by regulations, or indeed to do anything else by regulations. It is we in Parliament who make regulations. Certainly, they must be laid by the Secretary of State, but then Parliament has the decision-making power. Indeed, in the further amendments laid by the noble Lords, Lord Sandhurst and Lord Wolfson of Tredegar, this is subject to the affirmative resolution. As it stands, I do not understand how the Secretary of State can be required by statute to give effect to those guidelines by regulations when it is for Parliament to accept or deny approval to such regulations.

Furthermore, it seems to me that the overall burden of the first part of Amendment 9—when it says

“must be submitted to the Secretary of State”,

followed by the implication that the Secretary of State has no option but to give effect to those guidelines—gives to the Secretary of State a power that he does not have and denies any function in the approval or the denial of the guidelines to the Sentencing Council, beyond simply proposing them to the Secretary of State.

So it is our position that Amendment 9 is in fact unconstitutional and does not work. It is for the noble Lords who have proposed it to consider how they want to proceed, but I would suggest for now that they withdraw it and come back on Report with something that at least makes constitutional sense before they go any further with this.

[Lord Timpson (Lab)]

Amendments 9, 10 and 17 in the name of the noble Lord, Lord Sandhurst, would require the Sentencing Council to submit sentencing guidelines about pre-sentence reports to the Secretary of State, who would then be responsible for placing these guidelines before Parliament for approval.

As noble Lords will be well aware, the Lord Chancellor has been clear that this situation has highlighted that there is potentially a democratic deficit here. The Government are therefore currently reviewing the role of the Sentencing Council and its powers for developing sentencing guidelines. In doing so, we are fully mindful of the recent developments on the imposition guideline, which have brought us to debating today’s Bill.

I acknowledge and thank the noble and learned Lord, Lord Burnett, for his comments. In conducting the review, the Government are particularly mindful of the special role that the council plays in bridging Parliament and the judiciary on sentencing policy and practice. There are of course significant policy and constitutional matters to carefully consider, alongside considering what recommendations arise from the wider independent sentencing review.

While I acknowledge the noble Lord’s rationale for tabling these amendments, I am not convinced that it would be proper to legislate on this in a piecemeal way, recognising that the amendments capture only sentencing guidelines about pre-sentence reports. I am also not convinced that using this fast-track legislation is the best way of going about this. I therefore urge the noble Lord to withdraw this amendment, but I hope I can offer some reassurance that the Government are keeping all options on the table. Once the review of the council is complete, the Lord Chancellor and I are clear that we are willing to further legislate on this in a more comprehensive way if necessary.

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Moved by

[Lord Marks of Henley-on-Thames]

15: Clause 1, page 1, line 15, at end insert—
“(13) Nothing in this section shall require the Council to issue guidance about pre-sentence reports that is not consistent with its duties under section 149 of the Equality Act 2010.”Member’s explanatory statement
This amendment is intended to probe the impact of this Act on any of the Sentencing Council’s duties under the public sector equality duty.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, my two amendments in this group, Amendments 15 and 18, cover two separate topics. The first relates to the public sector equality duty and seeks to provide that:

“Nothing in this section shall require the Council to issue guidance about pre-sentence reports that is not consistent with its duties under section 149 of the Equality Act 2010”.


As your Lordships will be aware, that section provides for the public sector equality duty, which is a duty to work towards eliminating discrimination based on protected characteristics, to advance equality of opportunity and to foster good relations between those with protected characteristics and others who do not have such characteristics.

I raise this issue in Committee because it has been suggested in some quarters that the public sector equality duty might have been compromised or broken by the Sentencing Council’s proposed imposition guideline, which has now been paused. This is a probing amendment to explore what the Government consider to be the position. Our understanding is that paragraph 3 of Schedule 18 to the Equality Act disapplies the equality duty from those exercising a judicial function, or citing on behalf of someone exercising a judicial function, which would apply to the Sentencing Council, so the public sector equality duty is not engaged at all in the sentencing exercise or in the ordering or commissioning of pre-sentence reports—which is, of course, a judicial function, because it is the judge who makes the order.

It would be helpful to ensure that these discussions are not conducted in the shadow of the misunderstanding of where the public sector equality duty applies and where it does not. On the substantive point, which is independent of the jurisdictional point that I have just raised, as to whether the paused imposition guideline would have been in breach of the public sector equality duty if it applied, we would argue that a guideline that had as its plain aim the elimination of inequality in sentencing could itself be found to be discriminatory—and we would not accept that it could.

Amendment 18 is the second amendment in my name in this group. It calls for an independent review of the operation of this Bill, if it becomes an Act, within two years of its passing. In calling for this review, I suggest that it is important to keep the work of the Sentencing Council generally under review, in the light of any applicable legislation. That is particularly so if this Bill becomes law because it is likely to be overtaken, or at least supplemented, in large part by reforms to be introduced both as a result of the Gauke review that is to report extremely soon and, no doubt later, as a result of the Leveson review into the criminal courts and their wider working. There will therefore be a constant need for review to ensure that contradictions do not arise or that any such potential contradictions are eliminated between this legislation and further reforms.

On a broader basis, it is important to monitor the success or failure of the attempt to address inequality of outcomes in the sentencing process. I know that the Minister is aware of and alive to the inequality of outcomes and determined to address it. I know that he regards our objections to this Bill on the basis that it does not do so as perhaps ill founded; nevertheless, it is important to keep under review whether the Bill actually hampers the addressing of inequality of outcomes.

On the second point as to why it is important to monitor progress, the Government are dedicated and committed to ensuring that pre-sentence reports are more widely available and in future more thoroughly prepared, and the resources being applied to the Probation Service are dedicated in part to that end. Therefore, it is important to monitor the effect of any such improvement in the availability and quality of pre-sentencing reports on reducing reoffending and, ultimately, reducing the number of people in custody. That justifies having a review after two years of the operation of this Act.

[Lord Sandhurst (Con)]

My Lords, I can be brief. On the noble Lord’s first Amendment, Amendment 15, we would not for our part want the Sentencing Council to go down the road of issuing guidance inconsistent with its duties under the Equality Act.

As for Amendment 18 and the review, we do not have a view on this matter. I note that with practically every Bill that comes before this House there is a call for a review at some point, whether it is one year, two years or five years down the road. The Sentencing Council must by now be well aware of public concerns and the concerns of legislators, and it would itself want to know how things are going. It is quite likely to call for a review if so minded. We are neutral on that topic.

[Lord Timpson (Lab)]

Amendment 15, in the name of the noble Lord, Lord Marks, seeks to ensure that any guidelines about pre-sentence reports issued by the Sentencing Council are fully compliant with the public sector equality duty under Section 149 of the Equality Act 2010.

I am not persuaded that this amendment is necessary, given the Bill’s key aim is to protect the principle of equal treatment before the law. It does this by removing the effect of the changes the Sentencing Council introduced in its revised imposition guideline, which provides that a pre-sentence report will “normally be considered necessary” for certain offenders, with reference to their personal characteristics, and prevents the council from reissuing guidance to the same effect.

Furthermore, nothing in the Bill impacts the Sentencing Council’s obligations to comply with the public sector equality duty in developing sentencing guidelines. I therefore urge the noble Lord to withdraw his amendment.

Amendment 18, also in the name of the noble Lord, Lord Marks, would require an independent review to be arranged by the Secretary of State into the changes made by Clause 1 of the Bill to sentencing guidelines about pre-sentence reports. I am mindful that a very similar amendment was tabled during the Bill’s consideration in the other place, and I do not want to repeat in full the debate there, but I hope it may be helpful if I briefly summarise the Government’s position.

While I recognise it is of course important to carefully ponder the Bill’s effects, I stress that the direct changes it makes are limited in nature. All this is about is ensuring that offenders do not receive preferential treatment regarding pre-sentence reports based on their personal characteristics. This gets to the heart of ensuring equality before the law, which is a principle which does not need to be reviewed.

To be clear, nothing in the Bill will prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving domestic abuse, young people or pregnant women.

While I therefore urge the noble Lord, Lord Marks, to withdraw this amendment, I hope that I can reassure him that there will be ample opportunity in this House to discuss matters with regard to the Sentencing Council in future, once the Lord Chancellor’s review into the wider role and powers of the Sentencing Council is complete.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am content to withdraw the amendment at this stage and will consider further developments before Report.

Amendment 15 withdrawn.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[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.

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Moved by

[Lord Marks of Henley-on-Thames]

2: Clause 1, page 1, line 5, after “not” insert “without good cause”
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.

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[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.

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Moved by

[Lord Marks of Henley-on-Thames]

5: Clause 1, page 1, line 7, at end insert—
“(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.

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[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.

Amendment 5 withdrawn.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Tuesday 10th June 2025 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

My Lords, I start by paying tribute to the chairman of the Sentencing Council, Lord Justice Bill Davis, after the sad news that he passed away at the weekend. He made a significant contribution to criminal justice and I particularly recognise his work serving on the Sentencing Council, first as a judicial member between 2012 and 2015 and then as its chairman since 2022. The Lady Chief Justice recalled him yesterday as one of the very best criminal judges of his generation. I am conscious that many noble and noble and learned Lords will have known and worked closely with him. I take this opportunity, on behalf of the House, to extend our deep condolences to Lady Davis and his children and to all those who knew him.

I take this opportunity to extend my thanks to the many noble Lords who have contributed to debates on the Bill in this House. Despite its short length, it has prompted careful and detailed consideration from Members of this House, and I am grateful to noble Lords who have, throughout its passage, provided constructive challenge. I am grateful to the officials who have been involved in its preparation and passage. The Opposition Front Bench, in particular the noble Lords, Lord Sandhurst and Lord Wolfson, have engaged constructively on the Bill, for which I am grateful. I pay particular thanks to the noble Lord, Lord Marks, the noble and learned Lord, Lord Burnett, the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Gloucester, who have all been generous with their time in both their scrutiny of the Bill and their engagement with me. Finally, I thank the team who have supported me on this Bill, in particular Katherine, James and Jack, to whom I am very grateful. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I add my note of sadness at the news of the death of Lord Justice William Davis recently and add my condolences to those of the Minister to his family upon his passing. He was a judge of great distinction. He led the Sentencing Council, which is the subject of this Bill, with very great distinction as well. He will be greatly missed.

Turning to the Bill, we made it clear that we did not agree with the Bill: we did not agree with the principle or that the proposed guidelines of the Sentencing Council threatened the notion of equality before the law. We believed, as is clear, that this was not a sensible use of emergency legislation and that the disagreement between the Sentencing Council and the Lord Chancellor should have been resolved without the need for legislation. We were concerned that the Bill had the potential to damage the Sentencing Council. In the event, we did not succeed in securing the withdrawal of the Bill, or in amending the Bill, which had Conservative support, so it will now become the law.

However, we can take two strong positives from the debate around this Bill. The first is the Government’s commitment to the Probation Service and to the importance of pre-sentencing reports in giving guidance to judges and providing consistency in sentencing. The commitment has been to having more reports of higher quality, backed up by increased resources. I thank the Minister for his kind words to me and others in opening this short debate; I say from these Benches what a credit he has been to his department and to this House in coming fresh to the House with his very strong commitment to the sentencing system and the Probation Service. His presence on the Front Bench has been a breath of fresh air for us all, and we are very grateful to him.

The second positive has been the recognition around this House of the enormous value of the Sentencing Council in giving independent, well-researched advice on sentencing to judges, with a view to promoting consistency not just in sentencing but in the approach to the factors that judges need to take into account in sentencing. I add my gratitude to Members around the House—both those with experience of acting in criminal cases and those with no experience of the criminal law or of law at all—who have stressed the importance of these issues to the development of the law and our criminal justice system, and, perhaps more importantly, to the maintenance of confidence in the criminal justice system in future.

[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.