Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Dholakia Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

Does the Minister believe that the change will result in more community-based sentences for marginalised ethnic groups or fewer? The Committee needs to believe that sufficient safeguards will be in place as a result of the change the Bill will make. Although the words of the noble Lord, Lord Timpson, on equality before the law appear just and fair, I fear that, if this change is in the Bill, the exact opposite will occur in some cases. This will result in miscarriages of justice in some instances, which I am convinced is not the Minister’s intention.

[Lord Dholakia (LD)]

My Lords, I first offer my apologies for missing the Second Reading of the Bill. I was chairing another meeting at the time and was therefore absent.

I have been involved in race-relations issues since the early 1960s, which, if I may say so, was well before the Lammy review on sentencing. The Lammy review highlights the stark ethnic disparity in all stages of the criminal justice system, and ably describes what happens. It explains that, from the point of arrest, through to prosecution, custodial remand, sentencing and imprisonment, ethnic-minority groups are disproportionately represented and experience disproportionately worse outcomes. The review specifically highlights the importance of pre-sentence reports in tackling such anomalies. It sheds light on individuals from backgrounds unfamiliar to the judges in this country.

My interest in the criminal justice system started in the early 1960s, when I was appointed a member of the board of visitors of HMP Lewes, a predominantly white town in Sussex. The problem was that coachloads of young black people on remand were brought from Brixton to Lewes prison, and the perception of white prison officers was that they were all criminals. It took me quite an effort to convince staff that bringing black people such as doctors, dentists, teachers and technologists into prisons as visitors would demonstrate that they provided a valuable service to the community. I was not surprised by the limited knowledge about different communities within our country and the complete lack of understanding about them. I was well aware that the race relations adviser in the Home Office at the time was stopped and searched at least 35 times when he was driving his car to work or other engagements. That was the situation in those days.

Years later, a parole system review was set up by Douglas Hurd, the Home Secretary, under Lord Carlisle of Bucklow, and I was appointed a member. In the course of our visits to the United States, I was astonished to see the number of black faces in prison. One of the members of the review team was Roger Hood, director of criminological research at Oxford University, and we both came to a conclusion about the need for systematic research so that we did not end up with predominantly black prisons in the United Kingdom. On our return, we approached the Commission for Racial Equality for funding, and it was granted.

We had serious problems with ethnic statistics, which were not kept, except by police forces. We looked at nearly 4,000 cases that had gone through the West Midlands courts, so there was no instance of influencing an ongoing process. In addition, the research looked at 1,000 predominantly white cases as its controlled element. Never before was such a vast research project undertaken. With ethnic data available from police files, and using over 80 sentencing variables, later reduced to about 20, the results were startling. The study revealed a complex pattern of racial disparities influencing variations in the use of custody, sentence length and alternative punishments. It challenged the need to eliminate racial bias from sentencing practices. This was the first major study to examine whether race is a factor in influencing the crown courts in England.

One thing I failed to report was that, when we looked at the statistics of the 4,000 cases before us, we not only identified the discrepancies in the sentencing process itself but were able to identify the judges predominantly involved in this exercise. All these factors appeared well before the Sentencing Council was established in 2010. Despite this, there are still a large number of black faces in our prisons compared with their representation in our community. The same applies to women in prison.

The Government have been wrong in the past and will be so in future. The number of ethnic minority faces will rise in our prisons. A good PSR will allow a judge and probation officer to do sentence planning, with a higher number of community sentences rather than custodial sentences. We need to understand that good sentence planning allows us proper rehabilitation and resettlement instead of planning for gloom and doom. We need a system that is effective and less costly in future.

I am also delighted to support the amendment from the right reverend Prelate the Bishop of Gloucester.

I have racked my brain to find any logic as to why the Bill is necessary. It is a fact that the public and political world is conditioned by gut feeling rather than by examining the outcomes of social research. We are often reliant on prisons as a means of dealing with offenders instead of assisting reforms. There is a crying need to give priority to crime prevention and diverting offenders from the criminal justice system.

I often ask myself: are women’s prisons necessary? I look to our judiciary to ensure that courts should send to prison only those whose offending makes any other course of action unacceptable but, more importantly, to ensure that those sent to prison should not stay there for any longer than is absolutely necessary.

The pattern of crime changes from place to place and from generation to generation. There is ample research into the causes of crime and a good deal of information about how society could respond. I am grateful to one of my colleagues, Bela Mongia, a human rights lawyer, and Janey Starling, who has been supporting Level Up’s No Births Behind Bars campaign for a while now.

Unless we take measures of this kind now, it will be very difficult for overstretched prisons to provide regimes which vulnerable inmates need. We still continue with short sentences which serve little purpose. They are too short for sustained rehabilitation programmes but long enough for people to lose jobs and accommodation and to weaken their family ties. Most of these offenders would be better dealt with by community orders which can provide a longer period of supervision to address their offending behaviour—a point well made by the noble Lord, Lord Marks.

I have repeatedly urged Governments to legislate to make sentencing guidelines take account of the capacity of the prison system. At a time when all other parts of the system have to work within the reality of limited resources, there is no reason why sentences should be exempt from this provision.

The campaign has achieved extensive media coverage and continues to work towards an end to the imprisonment of pregnant women and mothers. It has the support of the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, and the Association of Child Psychotherapists.

The Sentencing Council has credited this organisation in its decision to introduce two key guidelines: a new mitigation factor for pregnancy guideline, and a new imposition of community and custodial sentences guideline. These avoid custodial sentences for pregnant women and new mothers on account of the risks.

I do not believe there are important sources within the Home Office or Justice Department who possess the expertise required in such matters. I believe the Minister is misguided in reaching a decision on these matters. It is not right to have any birth certificate which identifies a place of birth as “HM Prison”. Public opinion polling shows that the majority of people want to see pregnant women and mothers given community sentences.

[Baroness Hollins (CB)]

My Lords, I will speak briefly about definition, and in particular the lack of definition of “personal characteristics”. There is a possibility that the Bill could have unintended consequences for two groups that I have a particular interest in: first, people with learning disabilities and autistic people, and, secondly, mothers and their children.

On the first point, offending behaviour by people with learning disabilities and autistic people is often a consequence of environmental failures, and custodial sentences do not reduce offending for these groups. PSRs are essential because they may not be easily recognisable without a pre-sentencing report. It is quite worrying, especially at a time when it seems as if new mental health legislation may not adequately develop the community resources that are needed to keep them safe. That is one issue.

I specifically want to speak about Amendment 16, introduced by the right reverend Prelate, and agree with the points she made. I am a retired psychiatrist with a specialism in child psychiatry and psychotherapy, as well as learning disability and autism. I am concerned about the impact this may have on maternal and children’s well-being, in both the short and the long term. The noble Lord, Lord Marks, commented about innocent children, but it is much worse than that. We know unequivocally that perinatal and postnatal periods are critical to the lifelong health and well-being of the child. When mothers are sent to prison, 19 in 20 children are forced to leave their homes at that time. This is not okay.

We have plenty of evidence from developmental psychology, psychiatry and neuroscience that shows that maternal stress and separation during the perinatal period can alter a child’s developmental trajectory. The effects ripple across the child’s whole lifespan, impacting their ability to form secure relationships, regulate emotions, perform in school and thrive in adulthood. That kind of developmental trauma significantly increases a child’s own long-term risk of mental illness, future offending and substance misuse.