Sentencing Guidelines (Pre-sentence Reports) Bill

Debate between Lord Marks of Henley-on-Thames and Lord Beith

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.