Criminal Cases Review Commission

Lord Marks of Henley-on-Thames Excerpts

Wednesday 7th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness is right to say that there is concern with the CCRC. The Lord Chancellor has recognised that and has put in place the framework, if I can put it like that, to consider change, which may be radical change—we wait to see. There certainly are concerns with the operation of that body.

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

My Lords, Andrew Malkinson served 17 years for a rape he did not commit. The CCRC is supposed to be the last hope for victims of miscarriages of justice; a safety net to ensure that wrongful convictions are examined with diligence. An independent review demonstrated that the CCRC carelessly missed several opportunities to overturn that conviction. In her recent evidence to the Commons Justice Committee, the chief executive demonstrated a complete lack of the required diligence. Is it not now time for her to go and to be replaced, as the noble and learned Lord, Lord Garnier, suggested, by a full-time, executive, highly qualified chair?

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise the point that the noble Lord made about Andrew Malkinson, who suffered a terrible miscarriage of justice. I understand there has been an interim payment made to him and that it is currently under consideration what the final award will be. My understanding is that the CCRC commissioned its own separate independent review into its handling of Malkinson’s issue and the applications, led by Chris Henley KC. The review, published in July 2024, set out multiple organisational and individual failings leading to that miscarriage of justice. That forms part of the overall review to which I have referred in earlier answers.

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.

Whiplash Injury (Amendment) Regulations 2025

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th May 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this draft instrument amends the fixed tariff for whiplash compensation, set by the Whiplash Injury Regulations 2021, by applying an inflationary uplift to the tariff values. In doing so, this amendment gives effect to recommendations made by the Lord Chancellor on 21 November 2024, following the completion of her statutory review of the 2021 regulations. By adjusting the whiplash tariff values to account for inflation, the Government will ensure that claimants can continue to receive proportionate compensation until the next review in 2027. These amendments were debated and approved in the other place on 2 April. I also remind the Grand Committee that the Secondary Legislation Scrutiny Committee has drawn this SI to the attention of the House.

The whiplash reform programme changed the way claimants are awarded damages for low-value whiplash injuries following from road traffic accidents. The aim of the reforms was to ensure an efficient, proportionate and reliable system for both claimants and defendants involved in road traffic accident-related whiplash claims. At their core, the measures aimed to reduce the number and costs of whiplash injuries and deliver savings to consumers via reduced motor insurance premiums.

Elements of the reform programme were delivered through the Civil Liability Act 2018, which introduced several important changes to the civil claims process. Alongside measures that introduced a legal definition of what constitutes a whiplash injury and banned the settling of such claims without medical evidence, the 2018 Act empowers the Lord Chancellor to set a fixed tariff for damages for road traffic accident-related whiplash injuries lasting up to two years. The 2018 Act measures were supported by additional secondary legislative changes to increase the small claims track for road traffic-related personal injury claims from £1,000 to £5,000, and the introduction of a new pre-action protocol for personal injury claims below the small claims limit in road traffic accidents. At the same time, the insurance industry-owned and developed Official Injury Claim portal was launched to assist claimants affected by the reforms.

The first whiplash tariff was set by the Whiplash Injury Regulations 2021—which I will refer to as the 2021 regulations—which came into force on 31 May 2021. The 2018 Act requires the Lord Chancellor to review the 2021 regulations, and thereby the whiplash tariff, within three years of its implementation, and within every three years thereafter. In fulfilment of this statutory obligation, the first review of the whiplash tariff was completed on 22 May 2024, and the Lord Chancellor published her report of the statutory review on 21 November 2024.

On reviewing the 2021 regulations, the Lord Chancellor concluded that the structure and component parts of the whiplash tariff were effective. However, she recommended that the tariff amounts be uprated to account for CPI inflation between 2021 and 2024, and to incorporate a three-year buffer to account for expected inflation until 2027. She did not consider that any other changes to the 2021 regulations were necessary. In reaching her conclusions and recommendations, the Lord Chancellor took into consideration relevant industry and courts data, as well as information from a Ministry of Justice call for evidence, which ran from 6 February to 2 April 2024. In accordance with the review, this statutory instrument increases the whiplash tariff damages values and, subject to approval by both Houses, the new tariff will apply to all road traffic accident-related personal injury claims in England and Wales from 31 May 2025.

I hope noble Lords will find it helpful if I provide some additional explanation of the increase that will be applied to the whiplash tariff. By way of background, I should say that the whiplash tariff operates via a rising scale of fixed compensation payments determined by injury duration, up to a maximum of two years. The payments in the original whiplash tariff set in 2021 range from £240, for whiplash injuries lasting three months or less, to £4,215 for whiplash injuries lasting between 18 and 24 months. There is a separate, slightly higher tariff for cases where any minor psychological injury, such as low-level travel anxiety, is incurred at the same time as the whiplash injury. Claims for whiplash injuries that last longer than two years fall outside of the fixed tariff.

When the tariff was first implemented in 2021, the amounts were set to include a three-year “buffer”, which was designed to account for expected inflation according to available forecasts at the time and to ensure that claimants were not undercompensated in the years between the tariff’s implementation and the first statutory review. In reviewing the 2021 regulations, the Lord Chancellor recognised the impact of inflation on the whiplash tariff amounts. Inflation over the first three-year period ran at a higher-than-expected rate and, as most respondents to the 2024 call for evidence noted, the real value of the tariff had fallen. In the light of this, she concluded that the tariff should be uprated by actual inflation between 2021 and 2024 and should again include a buffer to account for expected inflation until the next review in 2027. Therefore, the whiplash tariff will be increased by around 15% for claims arising from road traffic accidents occurring on or after 31 May 2025.

As I have already mentioned, this increase has been calculated using the consumer prices index inflationary measure. After careful consideration of the available data and evidence, the Lord Chancellor determined that CPI remains the most appropriate measure for uprating the tariff amounts by inflation. It is also worth noting that the use of CPI is in line with common practice across government, as recommended by the Office for National Statistics. In contrast, she considered that the alternative retail price index measure, if applied, would likely overstate inflation.

In accounting for inflation, the Lord Chancellor also decided that the whiplash tariff should continue to be future-proofed by applying a CPI rounding over three years from 2024 to 2027. This approach is consistent with the method used to protect claimants from additional inflationary impacts when the first whiplash tariff was set in 2021. Although this three-year buffer could lead to some overcompensation in the short term, not implementing it would allow the real value of claimants’ damages to decrease and would risk significant under- compensation in the long term. Therefore, this buffer protects access to justice and minimises the risk of claimants being undercompensated in the years leading up to 2027.

As noted by the Secondary Legislation Scrutiny Committee, the call for evidence showed opposition to the buffer in its present form. Of the 32 respondents, 29 opposed the use of the three-year buffer, but, crucially, their reasons for doing so were different and, in the opinion of the Lord Chancellor, unconvincing. Some respondents suggested that the buffer would artificially increase the amount of compensation available and potentially undermine cost savings. However, the difference in tariff levels using the buffer is not substantial enough to impact significantly on savings. The tariff amounts are being adjusted only to account for inflation; as such, it is our view that this does not represent a real-terms increase in claim values.

Conversely, I am aware that other stakeholders preferred that the whiplash tariff should be either subject to an annual review or index-linked to inflation to ensure annual increases. As the Lord Chancellor made clear in her report, these arguments are not compelling. A three-year review period, as anticipated in the 2018 Act, strikes the right balance between adequately compensating claimants and maintaining a stable system that is as simple to understand and administer as possible.

It is worth noting that the recent high inflationary cycle was driven by a unique set of circumstances and is not a regularly occurring event. Therefore, while it is appropriate that the whiplash tariff is regularly reviewed against inflation, three years is the appropriate length of time at which to hold such reviews. Other than uprating the whiplash tariff to account for actual and expected inflation, as I have explained, no other amendments to the 2021 regulations are made by this instrument.

In accordance with her statutory obligation, the Lord Chancellor consulted the Lady Chief Justice before making this instrument. The Master of the Rolls, on behalf of the Lady Chief Justice, expressed his endorsement of the proposal to uprate the whiplash tariff. He also noted that the judiciary would not welcome any further derogation from the principle that damages are assessed and awarded by the courts. As noble Lords have seen, in accordance with the powers conferred on the Lord Chancellor by the 2018 Act, this instrument adjusts only the level of damages for whiplash injuries lasting up to two years.

I believe that the amendments that this instrument will make to the 2021 regulations represent a balanced, proportionate and practical approach to uprating the whiplash tariff ahead of the next review in 2027. I beg to move.

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

My Lords, I am grateful to the Minister for his careful and comprehensive introduction to this statutory instrument. Its central point is to update the 2021 level of damages, having regard to inflation. We welcome that update, and I say at the outset that we have no objection to the use of the consumer prices index for the uprating, nor do we suggest that three years is an unacceptable review period. We welcome the buffer for future-proofing, as the Minister described it. That will take us to 2027, which will follow a further review.

I am bound to say in passing that I hope the Minister is right that the higher rate of inflation that we experienced recently is a one-off event and not likely to be repeated. His economic forecasting may be better than mine, but I note that it is shared by the Lord Chancellor, who is venturing into unexpected fields —so be it.

However, I continue to have the doubts that I expressed in 2018, when what is now the Civil Liability Act was being considered. For my part, I am not convinced of the merits of a tariff for damages for whiplash injuries, particularly at the higher end of the scale for such injuries. Whiplash injuries—even minor ones, and, in particular, those with psychological consequences—cover quite a range. The sums, which approach £5,000 at the higher end of the scale, for the 18 to 24-month duration injuries, represent a considerable sum of money for many claimants, who may feel short-changed by the fact that there is no discretion applied to the award of damages for pain, suffering and loss of amenity in their case. I still suspect that we would be better served by enhanced scope for greater judicial discretion by district judges and, in some cases, circuit judges, assisted by Judicial College guidelines, so that claimants would feel that they had had individual attention, rather than by the rigid application of a tariff. Those were the points that I and my colleagues made in 2018.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Miscellaneous Amendments) Order 2025

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th May 2025 Grand Committee

[Lord Jones (Lab)]

My Lords, time is of the essence, so I will be brief. I thank the Minister for his compassionate introduction. He has been so good as to indicate, unasked and informatively, where the pilot areas are. He mentioned my homeland, north Wales. I wonder whether he can be specific as to whereabouts in that lovely land.

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

My Lords, I thank the Minister for his comprehensive introduction to this order. It has been extremely helpful to hear the way in which he set it out.

Broadly, we support the changes made by this instrument. It is plainly right that the regulations affecting legal aid for the victims of domestic abuse should reflect the broader definition of “domestic abuse” in the Domestic Abuse Act, rather than the previous, narrow definition of “domestic violence”, which failed to recognise, for example, coercive and controlling behaviour. It is also right that the narrow definition of “financial” abuse is to be replaced with a broader definition of “economic” abuse in all the other areas that the Minister outlined. The regulations should be updated—as he has explained that they will be—to ensure that legal aid is available in relation to disputes concerning domestic abuse protection orders and domestic abuse protection notices.

That medical evidence is now to be admissible from overseas health professionals is plainly sensible; it is an anomaly that this was not already the case. There was, for example, nothing to cover the position of a victim of domestic abuse who was assaulted by a partner while temporarily abroad on holiday and who had obtained contemporaneous evidence of that assault while she or he—usually she—was still abroad. It is also sensible that abuse of third parties—often the child of an intended victim or victim—should be within the definition of domestic abuse for legal aid purposes.

As has been explained, these regulations also make a significant improvement in the position of those whose immigration status comes under threat as a result of domestic abuse at the hands of a former partner or spouse when the relationship that has broken down as a result of that abuse formed the basis of their obtaining leave to enter and remain in the United Kingdom and the breakdown threatens their immigration status. The provision of a clear route for such victims of domestic abuse to secure legal aid to pursue an application for leave to remain is right and we welcome it.

So all these reforms are very welcome, but this kind of piecemeal reform, welcome as it is, barely scratches the surface in repairing the damage done by the reductions in the scope of legal aid. The Labour Party has a long tradition of supporting legal aid, but legal aid, particularly civil legal aid, has been a Cinderella service in recent years, seriously restricted in scope by the LASPO Act —I entirely accept that the coalition Government, which my party supported, had a lot to do with that —and in a number of very important areas. The service has been starved of funds for the provision of comprehensive advice and the pursuit of cases in those areas that are still within scope.

I know there is no need to remind the Minister of the excellent review of legal aid carried out under the leadership of his colleague, the noble Lord, Lord Bach, in 2017, but its principles were well stated, thoroughly argued and should guide this Government on the future of legal aid across the field. Indeed, the impact assessment for the 2023 order sets out the principle underlying civil legal aid in wide-ranging terms that I unhesitatingly endorse. I read them by way of reminder and in an effort to hold the Government’s feet to the fire across the wider field of legal aid.

Under the heading

“What are the policy objectives of the action or intervention and the intended effects?”


the impact assessment states:

“The policy objective behind the proposals in this Impact Assessment … is to ensure that legal aid is available to the groups of people identified and that legal aid is fairly provided across all proceedings. The ability of individuals to resolve their legal issues is vital for a just society and it is crucial that people are able to access support when they need it. A core element of this support is access to legal advice and representation where it is necessary. The Government provides legal aid in England and Wales to ensure those who need it can access legal advice and representation”.


So far, that is entirely across the field in general. Coming to the subject of this statutory instrument, it says

“including victims of domestic abuse, and parents having their child taken away”.

This is an important general principle that I remind the Government of in relation to this order, which we support.

Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Thursday 3rd April 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, two days ago, magistrates and judges across England and Wales were, in effect, blindsided. At midday, they were informed that sentencing guidelines that they thought had come into force had in fact been suspended. The courts would have been sentencing offenders under guidelines that the Lord Chancellor herself now admits are fundamentally flawed. These are guidelines which, she has stated, would inflict a “two-tier” system of justice, undermining fairness and consistency in our courts.

In addition, buried in the very email sent to judges and magistrates, the Sentencing Council somewhat audaciously declared that

“we remain of the view that the guidelines are necessary and appropriate”.

While the Lord Chancellor advised in the other place on Tuesday:

“I believe that we must reverse them”.—[Official Report, Commons, 1/4/25; col. 183.]


So the Lord Chancellor says one thing and the Sentencing Council continues to say another.

This situation was entirely preventable, had the Lord Chancellor put party politics aside weeks ago and backed, rather than blocked, the Bill that my right honourable friend Robert Jenrick introduced in the other place. This Bill would have restored accountability and given the Lord Chancellor the power to govern justice policy. We may welcome the belated introduction of the Lord Chancellor’s Sentencing Council Bill, although I express regret that it had to come to this. However, we should be clear that the proposed Bill does not address the core of the problem, which concerns the status and accountability of the Sentencing Council.

There have already been concerns about other aspects of the Sentencing Council guidelines. Public reference has been made to the guidelines on immigration offences, although I understand that they are debated and indeed disputed. Further concerns have been expressed about guidelines on the provision of bail, where there is particular reference to the priority of ethnic minorities and transgender offenders. That also is a potentially discriminating practice that should not be maintained in our criminal justice system.

What is now required is a calm and considered review of the entire situation, rather than just a knee-jerk reaction Bill that addresses a symptom rather than a cause. I therefore invite the Minister, on behalf of the Government, to commit to a comprehensive review of all Sentencing Council and Ministry of Justice guidance on sentencing policy and bail policy, which should properly rest with the Government in the form of the Ministry of Justice and not with a wholly unaccountable Sentencing Council—however high a regard we have for those who sit in that council.

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

My Lords, the Lord Chancellor maintains that this Statement raises issues of principle, that it is about policy being for Parliament and not for judges, and that the Sentencing Council has breached the principle of equality before the law. We hear complaints from the Conservatives in particular—the noble and learned Lord, Lord Keen, is no exception to this, and it is unsurprising that I take a different view from him—of judicial overreach and of a two-tier justice system. However, all in this House are committed to equality before the law.

The background to the new proposed guidelines is the wealth of evidence, almost entirely undisputed, that ethnic minority defendants are more likely to be sent to prison than white defendants. Yesterday I mentioned the Lammy review, but there is so much more. This inequality of outcomes must be addressed; it is the very opposite of equality before the law.

Pre-sentence reports are a vital tool that enable judges to take into account the circumstances of an offender as well as the nature of the offence for which he is before the courts. The Lord Chancellor appears to accept that. The only other significant assistance a sentencing judge receives on an offender’s background and circumstances is the speech in mitigation from defence counsel. Although speeches in mitigation are powerful tools, they are made by defence counsel on the instructions of the defendant, so they are neither independently prepared nor impartial. They also cannot generally be independently verified, as pre-sentence reports can.

So we need these reports, and they have long been intended to be the norm not an optional add-on, yet resources for these reports have, in effect, been rationed. The Probation Service was hopelessly mishandled by the last Government, and one result is that there is not enough money to fund the number of pre-sentence reports we need. The noble Lord, Lord Timpson, yesterday gave the figures: the number of pre-sentence reports is down by 44% between 2013 and 2023.

The letter from the chairman of the Sentencing Council to the Lord Chancellor on 10 March explained the very thorough process that had led to these new guidelines, in the context of the statutory duty imposed by Parliament for the Sentencing Council to give guidelines to judges on sentencing. Part of the reason behind establishing the Sentencing Council was precisely to encourage consistency in sentencing—that is, equal treatment before the law—yet now we have the Government resorting to hastily drawn and unhelpful emergency legislation that tries to address a complex issue in simplistic terms. The operative section would provide that

“sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender”.

A subsection goes on to say that the “personal characteristics” may include—not must include—

“in particular … race … religion or belief … cultural background”.

The cohorts identified by the Sentencing Council as normally calling for a PSR include being a young adult, female, pregnant, or postnatal. Are those not personal circumstances and are they not relevant?

The solution to this is not emergency legislation. The emergency has now passed because the Sentencing Council has paused introduction of the guidelines. This emergency Bill has not yet had a Second Reading, and I therefore invite the Government to withdraw it now and end this unnecessary row. It is unseemly and widely regarded as such by the public. I suggest that the solution lies in rational and moderate discussion between the Sentencing Council, the Lady Chief Justice and the Government, to which Ministers in this House from the Ministry of Justice would have an important contribution to make.

The first aim would be to reach a solution that ensures that pre-sentence reports are properly funded so that they become the norm once again in all cases where a substantial prison sentence is not inevitable. The second would be that we recognise these reports play an important part in addressing and reducing the inequality of outcomes for ethnic minority defendants—this must be a major priority of the Government. The third would be that we all respect and ultimately achieve genuine equality before the law.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank both noble Lords for the points they have made and the questions they have asked. To set the scene, we believe the guidelines, as formerly suggested, risk differential treatment before the law, and that is why we opposed them. We asked the Sentencing Council to revise the guidelines, and it did not do so. The Lord Chancellor introduced legislation a couple of days ago to address the specific issues to which the Government object, and the Sentencing Council has put its guidelines on hold while Parliament has its say on these matters. The Lord Chancellor has gone further than this: she has committed to reviewing the role of the Sentencing Council more broadly and is considering all options. We are grateful to the Sentencing Council for pausing the introduction of the guidelines so that Parliament can have its say on the Bill that has been introduced.

The noble and learned Lord, Lord Keen, referred to the Conservative Party’s proposed Bill. We believe that that Bill goes wider than necessary, and the Bill that the Government are putting forward is addressing the specific point within the guidelines to which the Government object, but we acknowledge that there are wider considerations, and that is why my right honourable friend has put in place this wider consideration of the role of the Sentencing Council and its recommendations. I reject the noble and learned Lord’s assertion that magistrates and judges were blindsided. I do not think they were, and I do not think there would have been any inadvertent sentencing. I reject that accusation. I think there is a core problem here, which my right honourable friend has acted swiftly to address.

I agree with a lot of the points made by the noble Lord, Lord Marks. I was just reflecting that, in my previous role as a magistrate, I would have ordered many hundreds of pre-sentence reports, but I am conscious that, sitting in this Chamber now, there are colleagues who would have ordered many thousands of pre-sentence reports throughout their career. Of course, I agree with the points he made that they are an invaluable tool for anybody seeking to sentence in our criminal courts and that they had been degraded under the previous Government in their use and, to be frank, in the trust they were held in by sentencing magistrates or judges. It is very much the current Government’s intention to increase the number of probation officers—there were 1,300 more last financial year and there will be another 1,000 in the current financial year, and it is very much anticipated that there will be an enhanced role for the probation services as we move forward with future recommendations on sentencing, which are imminent. I agree with the general points that the noble Lord made about the importance of pre-sentence reports, and we want to build on that.

On the point the noble Lord made about the wider cohorts which are not explicitly referred to in the published Bill, I make the point that any judge or magistrate can always order a pre-sentence report as they wish. That has always been, and remains, the situation. Just because a specific cohort was not referred to in the Bill does not mean that judges cannot go ahead and order pre-sentence reports as they see fit. Nothing has changed in that context.

In conclusion, this is clearly a difficult situation. However, the Lord Chancellor has strong views on these matters, and it is of utmost importance that the wider public have, and continue to have, faith in our court system and the judiciary, which the Government certainly hold in the highest regard.

Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Wednesday 2nd April 2025 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend for the question. I am sure he is aware that I am not an expert on Scottish law, as I know some other noble and noble and learned Lords are. However, our position is that the Sentencing Council’s guideline could lead to differential treatment before the law. That is why we have acted as we have. Any judge can still ask for a pre-sentencing report in any case where they consider it necessary.

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

My Lords, we are all committed to equal treatment, but there is a mass of evidence, including the Lammy review, that ethnic minority defendants are far more likely to be sent to prison than their white counterparts. So we already have a two-tier justice system. Thorough pre-sentence reports are the only robust way to address that, and that is what the proposed guideline is about. Instead of emergency legislation, can the Government not, even now, work with the Sentencing Council to reach a solution that addresses damaging rationing of pre-sentencing reports and ensures that the personal circumstances of defendants in vulnerable cohorts are fully considered?

[Lord Timpson (Lab)]

Nothing in the Bill prevents judges requesting a pre-sentence report for pregnant women—it is normal practice for judges to request pre-sentence reports in cases involving pregnant women—nor does the Bill affect Court of Appeal case law, which states that a pre-sentence report is desirable in those cases. I believe that pre-sentence reports are very important, but they have declined in number considerably over the last 10 years. From 2013 to 2023, they declined by 44%. That is why we are putting extra resources into probation, recruiting more probation officers so that they have the time to produce high-quality pre-sentence reports.

Crown Court Criminal Case Backlog

Lord Marks of Henley-on-Thames Excerpts

Thursday 20th March 2025 Lords Chamber

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

My Lords, this has been a wide-ranging and impressive debate, and I thank the noble Lord, Lord Carlile, for securing it and for the comprehensive and persuasive way in which he opened it. I also join with everyone in congratulating the noble Baroness, Lady Longfield, on her excellent and moving maiden speech. Her long experience with the charity 4Children and as Children’s Commissioner will be invaluable, and she has shown today how she will give us a fuller insight into how the criminal justice system impacts on the lives of children and young people.

The Motion of the noble Lord, Lord Carlile, rightly concentrates on the impact of delays on evidence, victims and the fairness of proceedings for defendants. Last Tuesday, following the Lord Chancellor’s Statement to the House of Commons, I described the current backlog of 73,000 cases awaiting trial as “an utter disgrace”. The noble Lord, Lord Carlile, and the noble and learned Lord, Lord Burnett of Maldon, have given us some more of the figures.

I maintain that the Government could mitigate these delays with determined and urgent action to reduce them. Every lawyer who has worked in trials, civil and criminal, as the noble Lord, Lord Meston, said, well knows that evidence becomes less accurate with the passage of time. The accounts of honest witnesses often differ markedly, even when events are recent and reasonably fresh. Discerning the truth becomes much more difficult as time passes. Recollections fade, witnesses become unavailable, and details are forgotten—often, details which could help distinguish accuracy from falsehood, whether deliberate or unintended. Then, documents get lost, or their meaning and import are not recalled.

Unreliable evidence means unreliable trials, often leading to surprising acquittals where juries cannot be sure of guilt. There is also a risk of unsafe convictions, particularly where defence evidence cannot be found or witnesses traced and called. As the noble Lord, Lord Carlile, and the noble Baroness, Lady Levitt, pointed out, the problems are compounded by our having a demoralised, frustrated and often overstressed judiciary, and, as my noble friend Lord Thomas and the noble Lord, Lord Sandhurst, said, an underpaid and unhappy cadre of barristers.

The Motion speaks of the effect on victims. In that context, we rightly stress the effect of years of delay on victims of sexual violence, with many dropping out of prosecutions because they simply cannot take the strain, as the right reverend Prelate the Bishop of London described. That is desperately unjust for the victims, who feel they have no option but to let the perpetrators go free and to live with the guilt that goes with the fear that those same perpetrators will reoffend against other victims. So, perpetrators are not brought to justice, and that means a widespread lack of public confidence in the justice system as a whole.

The Minister mentioned last week that there were courts—he mentioned Bristol—where sexual violence cases were treated separately and brought on faster than other cases. Should not that be a general practice? But it is not just in sexual violence cases where victims suffer from these delays; court delays blight the entire system.

Then, the Motion speaks of unfairness to defendants. Innocent defendants are deprived, sometimes for years, of the chance to clear their names. They and their families suffer unjustly through the process, often ostracised by friends, losing employment and suffering intolerable strain for extended periods. Defendants who are guilty can lose the chance of early access to rehabilitative services, sometimes in ways that might be surprising.

Many defendants, as we all know, need help with mental health issues, but they can be cut off from treatment. My daughter, an NHS doctor, has referred me to the exclusion criteria of one NHS trust for access to talking therapies. Such therapies are not available to

“Individuals who are undergoing court or legal proceedings which involves harm to others”,

and I do not believe this is atypical. So, defendants to a charge of violence cannot access, sometimes for years of delay, a service that might really help them to address the mental issues that brought them before the court in the first place. Thus, the cruelty of justice delayed takes a serious toll on the lives of all those affected.

What is to be done? First, the MoJ must take up all the sitting days the Lady Chief Justice says are available. My noble friend Lord Thomas referred to her views, and I have no doubt that she is right: whatever the exact figure, there are several thousand extra days that could be utilised.

The first reason given by the Minister last week for not taking up those extra days was competition for resources, but long delays in court hearings do not save money—they cost money. The delayed trials have to be paid for in the end, and meanwhile there are more defendants in prison on remand, as the noble Baroness, Lady Porter, said. They may be acquitted or receive community sentences at the end. There are more defendants, victims and families with their lives on hold, making greater demands on public resources as they await delayed trials. I agree with the noble and learned Lord, Lord Bellamy, on increasing efficiency to reduce costs in this area.

The second reason given by the Minister last week was the need to have some headroom in the system to accommodate surges in demand for court time, caused by events such as the riots last summer. That argument has some force, but it would be better for such headroom to be provided—if the need arises—by emergency measures in the short term, rather than by tolerating unjust and unacceptable delays in the long term.

As others have pointed out, the court maintenance programme needs to be put on an emergency footing so that our, frankly, decrepit courts—many unusable and unused, as the noble and learned Lord, Lord Bellamy, pointed out—can be restored to full service, with temporary buildings used while the necessary repairs are undertaken.

Last week I suggested that the Government should consider evening and weekend sittings for uncontested cases, leaving more court days available for trials. Might the Minister respond to that suggestion?

I also agree with the suggestion of the noble Baroness, Lady Levitt, that we should have criminal masters to deal with a raft of applications that do not need the attention of judges. More of the Nightingale courts may have to remain open for longer than planned—even if they are not ideal, as the noble Lord, Lord Meston, pointed out. As the noble Lord, Lord Stevens, said, they can be used.

We need to improve procedures, so that fewer cases are adjourned because of the listing errors and prison transport mistakes that currently bedevil the Crown Courts. I also agree with the procedural suggestions of the noble Lord, Lord Carlile, for more advanced notice of skeleton arguments to be deployed. I have always agreed with the noble Baroness, Lady Coussins, on the need for efficient interpretation.

The Government accept that more must be done and that, even with the measures they are taking, the backlogs will grow. They pin their hopes on proposals for structural reform, but we cannot rely only on the hope that the Leveson review will solve the problem. Certainly, in time, structural reform of the system may help. For my part, I am loath to restrict jury trials, not least for the reasons given by the noble Baroness, Lady Hazarika, and the noble Lord, Lord Meston, that juries are multiracial and tend to be non-discriminatory.

I see the possibilities, mentioned by the noble Lord, Lord Carlile, of a new solution for long fraud trials. When it comes, Sir Brian’s report will have to be carefully considered, the Government will need to respond and any reforms will take time to implement, and even more time to have an effect on the backlogs. Given the urgency, we do not have that time.

Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Wednesday 19th March 2025 Lords Chamber

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

The Sentencing Council is independent of Parliament and government. The council decides on its own priorities and workplan for producing guidelines. The Lord Chancellor was clear about her discontent with the guidance when it was published on 5 March, which was the first time that she and other Ministers had heard about it. It is her view, and mine, that there should not be differential treatment before the law. The Lord Chancellor met with the chair of the Sentencing Council last Thursday and had a constructive discussion. The Lord Chancellor will be setting out her position in writing to the Sentencing Council and it has agreed to reply before 1 April. We will not get ahead of ourselves beyond that.

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

My Lords, the Lord Chancellor was reportedly incandescent that the new guideline appeared to suggest that lighter sentences should be imposed on members of ethnic minorities. I take a different view from the noble and learned Lord, Lord Keen, but I find the Lord Chancellor’s position baffling. As the chair of the Sentencing Council, Lord Justice William Davis, explained in his letter to her, the imposition guideline is absolutely not suggesting that lighter sentences should be imposed on ethnic minority offenders. Rather, it is concerned with setting out when pre-sentence reports are particularly important.

As the Minister is well aware, there is strong evidence—often discussed in this House—that offenders from ethnic minorities are more likely than their white counterparts to receive immediate custodial sentences, and particular care is needed to change that. We all agree on equality before the law and the guideline is intended not to encourage unfair sentencing but to prevent it. So, on reflection, do the Government now agree that, in view of their vulnerability to unfair sentencing, the guideline is right to highlight the need for pre-sentence reports for ethnic minority offenders?

[Lord Timpson (Lab)]

The issue of tackling disproportionate outcomes in the criminal justice system is a matter of policy and should be addressed by Government Ministers and not the Sentencing Council. It is my view and that of the Lord Chancellor that everybody should be treated equally in the eyes of the law. It is worth noting that the party opposite was not only consulted but welcomed these guidelines when it was in office. The former Minister for Sentencing wrote a letter to the Council setting this out on 19 February 2024 in which he stated:

“In particular, we welcome the clarification provided by the council regarding … fuller guidance around the circumstances in which courts should request a pre-sentence report”.

Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Marks of Henley-on-Thames Excerpts

Monday 17th March 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this instrument will specify proceedings for which the Online Procedure Rule Committee can make rules. The OPRC, established under the Judicial Review and Courts Act 2022, aims to modernise the civil, family and tribunal jurisdictions by developing rules governing the practice and procedure for specific types of online court and tribunal proceedings. These rules are intended to be simple, accessible and fair. They will streamline online processes and enhance the overall efficiency of the system. The OPRC cannot make any online procedure rules until the proceedings are specified in regulations.

I shall explain the proceedings for which this SI will allow the OPRC to make rules. In the civil jurisdiction, the OPRC will be able to make online procedure rules for property proceedings. The Ministry of Justice and HM Courts and Tribunal Service are working closely with MHCLG to ensure that the justice system is fully prepared for the implementation of the Renters’ Rights Bill. As part of this, HMCTS will digitise the court process for landlords to regain possession of their property, introducing a digital service for both landlords and tenants. Procedure rules will be required to allow use of this service. Parliamentary approval of the statutory instrument will enable the OPRC to make these rules. The digital service, and the rules, will reflect the renters’ rights measures as and when they are brought into force. The introduction of the digital service, and the rules which underpin it, are not, however, tied to the timelines for bringing the measures in the Renters’ Rights Bill into force. The OPRC will also be able to make online procedure rules for property proceedings in the First-tier and Upper Tribunal. This will allow certain cases currently dealt with by the Property Chamber or the Lands Chamber to be included in online procedure rules as and when HMCTS introduces digital systems that mean that those cases are managed online.

In the family jurisdiction, the OPRC will be able to make rules for financial remedies. This will include contested financial remedies and financial consent orders, for example, following a divorce. Online procedure rules for these proceedings will be designed to support the existing online services provided by HMCTS, which are currently governed by practice directions made by the Family Procedure Rule Committee.

The extent of this instrument is UK-wide. Its territorial application is England and Wales in respect of civil and family proceedings and UK-wide in respect of tribunal proceedings.

We believe that the digitisation of court and tribunal processes requires the development of procedure rules that are suitable for the digital age. They must be concise and straightforward to understand. They must support HMCTS and the judiciary to deliver online processes and keep adapting to advances in technology. These aims will be met by the transfer of these specified proceedings to the OPRC, a cross-jurisdictional rule committee whose members include experts in the law and in the development of user-focused digital services. I beg to move.

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

My Lords, I am grateful to the Minister for his helpful introduction to these proposed regulations. We on these Benches support the introduction of digital procedures, certainly where they can be introduced without any adverse impact on the fairness, transparency and user-friendliness of the procedures as a whole. We agree that digital procedures have the potential to streamline court proceedings, cut delay and costs and, to use the Minister’s words, produce a straightforward and concise procedure that will be more accessible. We supported the introduction of online procedures when the Judicial Review and Courts Act was debated in the House in 2022.

We also welcome the introduction of the Online Procedure Rules Committee. It can only be helpful to have a specialist committee to establish rules for online procedures across several fields. There will be scope for cross-fertilisation between different areas utilising the various digital skills that are available for the development of sets of rules in different fields, and that can only be of considerable advantage.

Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025

Lord Marks of Henley-on-Thames Excerpts

Monday 17th March 2025 Grand Committee

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

My Lords, once again I am grateful to the Minister for his introduction to this instrument. It is difficult to say much about this amendment order in that, as he pointed out, it does not alter the existing fees at all, as far as I can see. Also, the possibility of enhanced fees is restated in relation to the fees covered by the order, there already having been that possibility in legislation.

Having read the Explanatory Memorandum and listened to the Minister’s introduction, it appears that the level would have gone down on the introduction of what I think he called the new methodology, which I thought was an attractive word in relation to this instrument. In the interests of transparency, it would be interesting if he could say how much lower the fees would have been on the introduction of the new methodology had this instrument not been brought into effect.

In general, we are of the view that the level of court fees should be assessed by reference to the recovery of the costs of administration, rather than being treated as a kind of profit centre for either the department or the Courts & Tribunals Service. Therefore, we do not see it as sensible to set fees at a level that produces a substantial profit for the administration, although I can see an argument for the cross-subsidisation that the Minister mentioned where there are other areas that are loss-making for the Courts & Tribunals Service which are covered by some excess income on some of these very high-volume fees. I do not suppose that anybody will be too worried about the commission-type fee for the sale of goods and shipping.

We simply state that, in general, there should be a good reason for enhanced fees, which I think is a principle that the department accepts. We accept that some fees will exceed the costs of administration, but that needs to be justified. We do not see the fees charged by courts as an appropriate way of raising extra funds for the public purse.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his comments, and I agree with the way he set out the objectives of raising fees. It is not the objective to make a profit on them. The vast bulk of fees are set at a level to recover their administrative cost. However, occasionally there are these enhanced fees. For reasons which the noble Lord will understand, there is some limited extent of cross-subsidisation for certain fees which are set much lower or at zero. But the general principle is that the fees should cover the cost of the application itself.

The noble Lord asked what the fees would be if this order was not in place. In the case of the council tax liability order, the fee is being maintained at 50p, but it would go down to 23p if this SI was not put in place. In the case of the warrants of entry, it is currently being maintained at £22 but would go down to £12.09, for the same reason. It is more difficult for me to give the equivalent value for the sale of ships or goods because it is a different calculation and I cannot give a single number to give a comparison. However, I hope that answers the noble Lord’s questions. I commend this order to the Committee.