Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Beith Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, in moving Amendment 1 in my name, I begin with an apology. I have not previously intervened in the debates on the Bill. Unfortunately, long-standing commitments, including professional commitments, prevented me from participating both at Second Reading and in Committee. That, in fact, is one of the disadvantages, albeit a minor one, of so-called emergency legislation introduced at short notice. More serious disadvantages are, of course, the curtailment of time for reflection and a reduction in the time for consultation. However, I have had the opportunity of studying the Hansard reports of what was said in this House on both occasions, and what was said in the House of Commons.

My main purpose today is to speak briefly to Amendment 1. I begin by commending the admirable speech of the noble and learned Lord, Lord Phillips of Worth Matravers, at col. 1614, to those of your Lordships who, like me, were not present at the Second Reading debate. His speech was a model of brevity and conciseness, and I agree with everything that the noble and learned Lord said. He said that he did not believe that the guidelines introduced two-tier justice. I agree with that view. He said that he did not believe that the introduction of the guidelines would severely damage confidence in our criminal justice system. I share that view.

The noble and learned Lord, Lord Phillips, considered that there was no need for this Bill. I am of the same opinion. In my view, this legislation has been triggered by an unhappy combination of political point-scoring and political back-guarding—personal characteristics of an unwelcome kind, albeit not falling within the statutory definition in the Bill. The noble and learned Lord concluded by saying that we should reluctantly accept this Bill but seek to improve it by way of amendment, and that is what I seek to do.

My amendment is in substance a statement of principle—in fact, one that reflects policy, albeit, because of resource constraints, not the current practice. But given the fact that we have this Bill, I suggest that there is merit in framing the policy in explicit statutory and positive language.

I suspect that everyone who has experience in this field would agree that in the great majority of cases where an offender is facing the possibility of a custodial or a community sentence, it is highly desirable that the sentencer should have available a properly considered pre-sentence report—but not one which is the product of a few minutes of discussion in the cells. What is required is a considered and researched pre-sentence report by a qualified member of the Probation Service. That implies a Probation Service which is properly staffed and properly financed to address the required workload.

I deeply regret that, in recent years, there has been a serious decline in the number of pre-sentence reports, and I have in mind the decline of 42%, from 160,000 to 90,000, between 2015 and 2022, mentioned by the noble Lord, Lord Bach, in the Second Reading debate, and by others too. I acknowledge, with very great regret, that one of the immediate causes of this decline in the availability of proper reports was the policy of the Government whom I supported. I will add too, if I may, that the existence of a properly financed and staffed Probation Service is fundamental to the success of the sentencing reforms proposed by Mr David Gauke.

It should be self-evident that the pre-sentence report addresses all the relevant considerations that may help the sentencer to determine the appropriate sentence. That is what my amendment states explicitly. Such considerations may include the individual circumstances and the personal characteristics of an offender. I accept that, as became apparent in the debate, especially in Committee, there is a distinction between the two concepts, although there is a very high degree of overlap, so both criteria should be included. My amendment does that, with a definition to be found in Amendment 7. Guidelines are there to ensure uniformity in the practice of the courts.

Obviously, there is concern about the availability of resources: hence, the impossibility of making reports mandatory. It was the council’s concern about the inadequacy of resources that caused the guidelines to identify specific cohorts as having priority. But drafting the guidance in the positive language of my amendment meets the expressed concern of the critics of the guidelines. My amendment provides for the guidelines to be general in their application, and might encourage the Government to ensure that additional resources are made available to the Probation Service, so that pre-sentence reports become the norm in all appropriate cases. Amending the Bill in the modest way that I have proposed will, I hope, make a small contribution to the proper administration of criminal justice in this country. I beg to move.

[Lord Beith (LD)]

My Lords, I agree very much with what the noble Viscount has said. His amendment, like others in this group, would give some helpful clarity to an extremely unclear piece of legislation. I think we are about to make bad law, because the Government have been unable or unwilling to define what “personal characteristics” are. We do not know what will fall within the range of prohibitions placed on the Sentencing Council. It will be left with an undefined scope and an undefined extent. Race, religion and belief, or cultural background, whatever that is, are listed, but after that it becomes a matter for speculation as to what might be included.

The Government insist that the list that appears in the Bill is non-exhaustive. In a letter sent to several of us, the Minister states, but without citing any authority, that “personal characteristics” include sex, gender identity, age, physical disability and pregnancy or “other similar conditions”. What is similar to pregnancy? I have been puzzling over that for some time and I am not quite sure.

The Minister did not mention autism, a background of local authority care or experience of sexual abuse, although in the latter case the Government said, in a different letter, that it is not a personal characteristic to have been a victim, perhaps a repeated victim, of sexual abuse. What is included in the list appears to be in the minds of Ministers, or whatever may appear in the minds of Ministers at some later date, leaving the Sentencing Council and, indirectly, judges and magistrates in some confusion as to what the Government intended.

I think and hope that, in making decisions about whether to call for a pre-sentence report, courts will not be influenced by this whole row—it would be very unfortunate if they were—but there is just a slight risk that this may become an area in which courts start to think, “This is a bit political, we’d better not go there”. That must not happen. The still-existing freedom of courts to decide to have a pre-sentence report is not directly affected by the Bill. My worry is that it might have an indirect effect.

Law can have consequences. I foresee the day when a non-exhaustive list of prohibitions will appear in some other Bill on some other subject. What will happen then? We will be told that non-exhaustive lists of prohibited actions are an established practice and appeared in the Sentencing Guidelines (Pre-sentence Reports) Act 2025. It will become a precedent that will certainly get used on some future occasion, and I think that is a dangerous thing to be happening.

My noble friend’s Amendment 2 restores the Sentencing Council’s freedom, if there is good cause, to issue guidelines that refer to personal characteristics. I urge support for it and, if he presses it to a vote, which I hope he will, he will certainly have my vote and, I hope, those of others who are concerned to protect the ability of the Sentencing Council, a body of some distinction, to do its job in the light of sensible judgment, following discussion with the Government wherever that is necessary or appropriate.

I turn finally to Amendment 9, which is in my name. The Minister has asserted that pregnancy is a personal characteristic, falling within the restrictions imposed by Section 2 of the Bill. But there is case law accepting pregnancy as a reason to order a pre-sentence report, in R v Thompson 2024. Modern slavery was similarly referred to as grounds for a pre-sentencing report in R v Kurmekaj 2024, and being a young offender is dealt with in R v Meanley 2022.

It is difficult to accept that the case law should be overridden by the Bill if it becomes an Act. The Minister has asserted that it is overridden, asserting in his letter that the Bill would make

“such direction about obtaining PSRs across existing guidelines unlawful”.

“Unlawful” is the word used in the Minister’s letter. Nevertheless, he claimed that

“it will not prevent guidelines from reminding sentencers in more general terms that PSRs will be necessary”

when

“an assessment of the offender’s personal circumstances would be beneficial”.

So where does that leave us? It leaves us in a tangle of legal uncertainty, and there is no excuse for that. I suggest that the Minister should accept my amendment, leaving the Sentencing Council free to issue guidelines that reflect and draw attention to well-established case law on the value and importance of pre-sentence reports in cases of the kinds I referred to.

[Baroness Hamwee (LD)]

My Lords, I confess that I am still struggling to understand this Bill, despite it having only one clause. The Minister was as helpful as he could be in Committee, and we all know his pedigree, but he has been dealt a very difficult hand. I think this is a bad Bill and, as my noble friend has just said, it is going to be bad law. We all know the political background to it. On Monday, at Second Reading of the Border Security, Asylum and Immigration Bill, one noble Lord used the delicate word, which I will repeat, “presentational”. I think that is quite a good synonym. The Constitution Committee has commented on the Bill, picking up very much the points that the noble Viscount and my noble friend made and the response from the Ministry of Justice has not, I think, taken us any further.

In Committee, I asked what was meant by the words “framed by reference to”. I still do not really understand them. This has caused me to table Amendment 3, although I realise it is a bit risky pursuing this, because we may be told from the Dispatch Box that the Bill is more restrictive than we would actually want to see, and it is arguable that as it stands, the guidelines can refer to characteristics depending on the law which is being shaped.

The legislation should be clear and certain—points which were made very clearly by the Constitution Committee—especially in this sort of situation. It is curious that the Bill seeks to pit the state against a body such as the Sentencing Council.

--- Later in debate ---

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

I am grateful to noble Lords for their continued and careful consideration of this Bill. Before I turn to each amendment in this group, I want to briefly recap why we have brought the Bill forward.

In revising its imposition guideline, the Sentencing Council included text that suggests that a pre-sentence report will

“normally be considered necessary”

if an offender belongs to certain cohorts, including some that specifically refer to offenders’ personal characteristics, such as those

“from an ethnic minority, cultural minority, and/or faith minority community”.

We believe that the approach taken through this guidance risks offenders receiving differential access to pre-sentence reports based on their personal characteristics. It also means that the Sentencing Council is making policy on who should get a pre-sentence report, when this is properly a matter for Ministers and Parliament to decide. For these reasons, we have introduced this Bill to stop this guidance coming into force and prevent the Sentencing Council making similar guidance in the future.

I turn to the amendments in this group. First, there are those amendments which seek to give the Sentencing Council more discretion to include some factors that are based on offenders’ different personal characteristics. Amendments 1 and 7, from the noble Viscount, Lord Hailsham, with contributions from the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Carter, seek to give the Sentencing Council more discretion. The Sentencing Council could still make guidelines with reference to personal characteristics but only if the guidelines also said that those personal characteristics had to be relevant to the ultimate sentencing decision.

Amendments 2 and 4, in the name of the noble Lord, Lord Marks, would give the Sentencing Council discretion to include factors based on offenders’ different personal characteristics within relevant guidelines, if it felt that doing so would avoid inequalities in sentencing outcomes. Amendment 9, in the name of the noble Lord, Lord Beith, is intended to provide that the Bill does not prevent the Sentencing Council including provision within relevant guidelines that reflects existing case law about pre-sentence reports.

During Committee, I committed to take away the concerns expressed by noble Lords about the Bill’s current approach. I have carefully reflected on where there are alternative ways of meeting the Bill’s fundamental objective—to ensure equality before the law. However, ultimately, I remain confident that the current approach taken within the Bill is the best and clearest way to meet this objective. This is because, if these amendments were accepted, the Sentencing Council would be able to continue to produce guidelines that could risk differential access to pre-sentence reports. In doing so, the Sentencing Council would be making policy on a matter that is within the proper remit of Ministers and Parliament. Therefore, we do not believe that these amendments are beneficial, as they would undermine the Bill’s objectives.

I turn to the amendments of the noble Baroness, Lady Hamwee. Amendment 3 would change some of the drafting used in Clause 1. The Bill states that sentencing guidelines about pre-sentence reports may not include

“provision framed by reference to”

offenders’ personal characteristics. Instead, if the noble Baroness’s amendment were to be accepted, the Bill would state that any provision which is “solely based on” offenders’ personal characteristics cannot be included in relevant guidelines. The noble Baroness’s Amendment 6 seeks to add text to the Bill that confirms that it does not prevent the Sentencing Council producing relevant guidelines. This suggests that a pre-sentence report would be ordered where an assessment of an offender’s personal circumstances would be beneficial to the court. I have no doubt that the noble Baroness has suggested these amendments in the spirit of attempting to make the Bill as clear as possible, and I am grateful for the constructive challenge. I have carefully considered both amendments and we ultimately believe that they would not improve the Bill’s drafting.

For Amendment 3, this is because the Bill is already sufficiently clear. The drafting, which would prevent the Sentencing Council making sentencing guidelines about pre-sentence reports

“framed by reference to different personal characteristics”,

means that the council cannot include any text within relevant guidelines that refers to offenders’ personal characteristics. This effectively captures our intent, which is to ensure equality before the law. For Amendment 6, the Bill as drafted does not prevent the Sentencing Council including text within relevant guidelines that suggests to sentencers, in general terms, that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. We have been clear throughout the debates and in supporting material of the benefits of pre-sentence reports. We believe our intention is clear from the language we have used in the Bill. In the spirit of keeping the Bill short and simple, we do not consider it necessary to explicitly state within the Bill things that it does not do. The Bill does not prevent sentencing guidelines encouraging pre-sentence reports based on an offenders’ personal circumstances.

Amendment 8, tabled by the right reverend Prelate the Bishop of Gloucester, seeks to ensure sentencing guidelines can continue to advise sentencers to seek pre-sentence reports in cases involving offenders who are pregnant or who are primary carers of young children. I should like to start by thanking the right reverend Prelate for raising this point. I have long been an advocate for better support for pregnant women in prison and for those women who are primary carers of young children, ever since I first sat outside HMP Styal with my mother, taking foster children to see their mums on visits. I know all too well that so many of the foster children who I lived with had mothers in prison who were often victims of considerable trauma and abuse, and they were often vulnerable, addicted and mentally ill. Many found imprisonment had life-changing impacts, for not only them but their children.

Around two-thirds of female offenders sentenced to custody receive short sentences and around the same number are victims of domestic abuse. I proudly chair the Women’s Justice Board, which was set up last year with the aim of closing a women’s prison and addressing the specific needs of this cohort. The sentencing review’s recommendations on short, deferred and suspended sentences will reduce the number of women in prison. This is an important step towards that objective.

However, in the context of this specific Bill, following the Committee debate, I have further considered whether it would be appropriate to add an exclusion. Amendment 8 would allow the Sentencing Council to retain existing wording across relevant guidelines that suggests sentencers request pre-sentence reports for pregnant and post-natal offenders. We remain satisfied that the Bill’s current approach is the right one. It ensures sentencing guidelines do not risk preferential access to pre-sentence reports based on offenders’ personal characteristics. In doing so, it prevents the Sentencing Council making policy on who should get a pre-sentence report.

To be absolutely clear, this does not mean we think pregnant or post-natal women should not be receiving pre-sentence reports. We fully support the ability of sentencers to make their own judgment on whether to order a pre-sentence report, based on their consideration of the unique circumstances of individual cases. That is why nothing in the Bill stops courts requesting pre-sentence reports in any case where they ordinarily would do so. This includes appropriate cases involving pregnant or post-natal women, as well as other individuals who may be vulnerable for a number of reasons.

The key distinction here is that we cannot support any suggestion within sentencing guidelines that access to pre-sentence reports should be based on offenders’ personal characteristics. It is for this reason that we have been clear throughout the Bill’s passage that it does not affect the existing obligation on courts, under section 30 of the Sentencing Code, to obtain a pre-sentence report, unless considered unnecessary.

I want to re-emphasise that, following the Bill’s passage, the Sentencing Council can still remind sentencers in general terms that pre-sentence reports are necessary when, among other things, a full assessment of an offender’s personal circumstances would be beneficial. I would like to clarify that, even without a pre-sentence report, alternatives to custody can be considered by a sentencing court. Pre-sentence reports are by no means the only route through which alternatives to custody are considered, and women are diverted away from custody.

I hope I have reassured noble Lords about the Government’s sentiment with regard to better support for pregnant women and primary carers currently in prison and about our clear policy intention to reduce the number of women in prison. I therefore encourage noble Lords not to press their amendments in this group.

[Lord Beith (LD)]

Before the Minister sits down, could he clarify something for me, because he has made two apparently conflicting statements in the course of the correspondence? One is that it would be unlawful—and that is his word—for the Sentencing Council to frame guidelines in a way that reflected the existing case law that pregnant women should be the subject of pre-sentence reports. But he has just said, and has said on other occasions also, that the Sentencing Council can issue guidelines or statements of some kind which draw attention to that pre-existing case law. The purpose of my amendment was to leave the Sentencing Council free to do so. How can he, at one and the same time, say that this would be unlawful and then describe this way of carrying it out?

[Lord Timpson (Lab)]

These are different things and we do not want to link them. The Bill intentionally deals with the Sentencing Council, not the Court of Appeal. The Bill as drafted achieves its aims simply, and we do not want to overcomplicate things.