Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[Lord Hardie (CB)]

My Lords, I, too, have not spoken before on the Bill. I understand the sentiment behind the noble Viscount’s amendment. As a former judge in Scotland, I do not demur from the advantage of having such reports. However, I wonder whether there is an element of confusion in the various amendments. In the sense that the noble Lord, Lord Carter, seemed to suggest, there may be confusion in the mind of the sentencer as to whether he or she can order a report.

I do not read this clause as being that. Clause 1(2) specifies that the guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender. The personal characteristics are defined in Clause 3 as including race, religion or belief, and cultural background. So, I would have thought that it is irrelevant to determining a sentence that someone is of a certain race, or adheres to a certain religion, or has a certain cultural background. What one wants to know is something about the upbringing of the individual, whether he or she was abused as a child, and whether there are other circumstances in his or her upbringing that would explain his or her behaviour. So I do not see the need for the amendments that simply reinforce the position that already exists.

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

My Lords, before turning to Amendment 2 in my name, I will make a number of points that are relevant to the general difficulty of this Bill, highlighted by all the amendments in this group, and relevant to the unsuitability of legislating for what the Sentencing Council may or may not recommend in guidelines as to when pre-sentence reports should or should not be required. I take the point just made by the noble and learned Lord, Lord Hardie, that there is a distinction to be drawn between the guidelines and when a pre-sentencing report is to be required, but there is real scope for confusion, and that does concern us all.

When sentencing, effective judges must inevitably take into account the personal circumstances of individual offenders, alongside the nature of their offences, the requirement to punish and the need for deterrence. When taking into account those personal circumstances, they are bound to consider their different personal characteristics. So, the drafting of this Bill starts with a conflict that is, on analysis, almost impossible to resolve.

The Government tried to clarify what is meant by personal characteristics in an all-Peers letter just before Committee, in which the Minister cited the words of the noble and learned Lord, Lord Neuberger, in the House of Lords as the precursor of the Supreme Court, when he said that

“the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”.

This might assist a court to consider in a judicial context what words may mean, but it does not necessarily help with the construction of the meaning of a Bill. No clear distinction can be drawn between what a person is by birth and what a person may have become by reason of life experience. For example, is a woman pregnant because of what she is or because of what has happened to her? Is a black person scarred by racism suffering because of what they are or because of what has happened to them?

That difficulty is compounded by the fact that the list of personal characteristics in Clause 1(3) is non-exhaustive. They are said to

“include, in particular … race … religion or belief

or

“cultural background”.

But that does not exclude anything else—a point that has been made by my noble friend Lord Beith and by others throughout the discussion of this Bill. The use of the phrase “framed by reference to” was also rightly criticised by my noble friend Lady Hamwee as hopelessly uncertain. That was in the context of her proposing her Amendment 3, but it runs through the whole of this issue of personal characteristics.

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Moved by

[Lord Marks of Henley-on-Thames]

2: Clause 1, page 1, line 5, after “not” insert “without good cause”
Member's explanatory statement
This amendment, together with Lord Marks’ amendment to page 1, line 7, would allow the Sentencing Council more discretion in preparing sentencing guidelines about pre-sentence reports in order to avoid inequality of sentencing outcomes.

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

My Lords, I am very grateful to the Minister for his response. However, I do not believe that the proposed guidelines that the Bill seeks to make unlawful were inimical to equality before the law. Nor do I believe that the Bill advances—indeed, I believe it is hostile to—the attempt of the Sentencing Council to advise judges as to how to address the inequality of outcomes that bedevils our criminal justice system. My amendments are an attempt to assist in the addressing of that inequality, so I wish to test the opinion of the House on Amendment 2.

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Moved by

[Lord Marks of Henley-on-Thames]

5: Clause 1, page 1, line 7, at end insert—
“(4B) Sentencing guidelines about pre-sentence reports must promote greater use of such reports as part of sentencing, in particular when the sentencing decision is likely to involve a choice between a community penalty and imprisonment.”Member's explanatory statement
This amendment is intended to encourage increased use of pre-sentence reports.

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

My Lords, in the first group, we considered what we regard as the unsatisfactory nature of this Bill. My Amendment 5 is directed to ensuring that guidelines promote the use of pre-sentence reports as a general rule. As has been mentioned, there has been a very serious decline in the use of pre-sentence reports. As the Minister said in Committee and others have said today—notably, the noble Viscount, Lord Hailsham—there has been a 44% reduction in the number of pre-sentence reports ordered and produced over the last decade. That flows in part from the effect of a recognised lack of resources for the Probation Service to produce these reports over that period.

Not only that, but the reduction in numbers has been accompanied by a recent decline in the quality of the reports produced by the courts. Although, as the noble Lord, Lord Meston, said, some years back there may have been an improvement in the quality of pre-sentence reports, contemporary evidence suggests that there has been a significant decline over the last 10 years. I do not believe that that decline is attributable to a lack of commitment on the part of individual probation officers. However, we should recognise that the demoralisation that has taken place in the Probation Service has been very serious indeed. That has been partly the effect of the ill-starred changes to and reorganisation of the whole of the probation services, initiated by the previous Government. The later reversal, while welcome, merely proved that the whole experiment was profoundly unsettling and damaging to the probation services as a whole.

But the declining quality of pre-sentence reports has been principally the result of a lack of resources allocated to the production of individual reports, particularly the time probation officers have had to prepare them. These reports need to be thoughtful, and thoroughly and individually researched, with a real assessment of the most appropriate sentences in individual cases. The reports need to consider the individual circumstances of offenders with care, and officers need the time to do that. There needs to be much more opportunity for officers carefully to consider individually suitable community sentences and to research their availability. They need to have the time and resources to consider the conditions that might be appropriately attached to such community sentences, along with the employment and housing, and opportunities and risks, that need to be considered in individual cases.

In discussing these issues, we should not lose sight of the central features of sentencing hearings. Pre-sentence reports are the only real independent sources of information for judges about the personal circumstances of offenders and of the possible disposals and their suitability. Judges cannot get this assistance from speeches in mitigation by defence advocates, however well-researched and argued they might be. That is primarily, of course, because such speeches are delivered on instructions—the instructions of the offenders the advocates represent—and are not, therefore, independent. But it is also because the Probation Service has an unrivalled expertise in advising judges on appropriate sentencing. Given the resources and training that dedicated probation officers receive, they can make all the difference to sentencing and can help offenders to make their best efforts to turn their lives around. This is not only a civilised and humanitarian outcome; in turning offenders away from crime, and in reducing reoffending and the huge personal costs to victims and families associated with it, it brings substantial societal benefit as well.

The case for this amendment is that we need to return to the principle that once underlay pre-sentencing reports in practice, as well as in theory, and certainly in every case where the sentencing decision was between custody and community sentences: that the judge should have pre-sentence reports of the highest quality possible in all such cases. During the course of the noble Lord’s tenure as Prisons Minister, he has made it clear that it is his ambition to bring more investment into the Probation Service and to increase the number of probation officers—which should also improve, I would add, the retention of probation officers within the service and raise standards generally. For us, this is a crucial issue.

I am very grateful to the Minister for his constructive engagement with me and others during the passage of the Bill. If he can convince us from the Dispatch Box—I am very hopeful that he will—that his ambition is also the Government’s ambition for the Probation Service and pre-sentence reports, I will not press my amendment to a vote. However, the converse also follows. I await what the Minister has to say in response. I beg to move.

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[Lord Timpson (Lab)]

Amendment 5 in the name of the noble Lord, Lord Marks, would require sentencing guidelines about pre-sentence reports to encourage their greater use, particularly in cases where a sentencing decision is likely to involve a choice between a community or custodial sentence. I am grateful to the noble Lord for moving this amendment. He was right to ask how we can encourage greater use of pre-sentence reports and ensure that we have sufficient probation resource to do so, and he made exactly the right points in speaking about the importance of pre-sentence reports. I am grateful to him for the discussions that we have had since Committee; I would welcome continued engagement with him on this issue.

I hope that the noble Lord will not mind me giving quite a full answer to his question. Although he asked the right question, I would argue that there are other levers beyond sentencing guidelines that are the better place to solve the problem. We must ensure that we have a Probation Service that is properly funded and staffed, and which has the tools it needs to deliver. We must also balance the need for sufficient and thorough pre-sentence reports with the other crucial roles that the Probation Service plays. We want more, and better-quality, PSRs.

I am mindful that the noble Lord tabled a similar amendment in Committee, where I took the opportunity to set out the steps that the Lord Chancellor and I are taking to improve the Probation Service’s capacity to deliver timely and high-quality reports. I would like to reassure noble Lords further on the steps that we are taking to support our Probation Service; if they will permit me, I will endeavour to give a thorough answer as to what the Government are doing.

First, we are increasing staffing levels. We recruited more than 1,000 new trainee probation officers last year and we aim to recruit a further 1,300 this year.

Secondly, I am delighted that we have announced a significant increase to the budget for the Probation Service and other community services for offenders. It will rise by up to £700 million by 2028-29, representing an increase of around 45% by the final year of the spending review period. This is a very significant investment and demonstrates the Government’s commitment to this vital service. I am sure that the noble Viscount, Lord Hailsham, will agree that this is needed to fund probation in a way that ensures that our probation officers can do the job they came into the service to do.

Thirdly, I am convinced that a significant part of the answer sits with new technology. The Lord Chancellor and I recently hosted a tech round table with industry experts to make sure that we are asking the right questions and working collaboratively on the best solutions. Let me give noble Lords a sense of some of the transformative impact that we are already exploring in terms of technology.

I am passionate about ensuring that probation officers are able to do the job they came in to do. For probation, as with every other public service, new technology has the potential to be really transformative. We are exploring the benefits of AI in a number of areas. We are piloting the use of transcription and summarisation tools to reduce administrative load. We are developing algorithms to support decision-making, risk assessment, case prioritisation and operational planning. AI-powered search is being explored to better support the information gathering needed for report writing. All these have the potential to save significant practitioner administration time and to improve quality, allowing probation officers to focus on face-to-face time with offenders, to support them to change, rather than on administrative tasks.

Technology can also transform how probation staff can bring the right information together to assess and manage offenders. For staff writing pre-sentence reports, we are rolling out a new service called “Prepare a case for sentence”, which links probation systems with the court’s common platform and gives probation staff in the courts the earliest possible notice of cases that are being listed, as well as new templates so that reports are timely and give the courts what they need.

We are also investing in the complete redesign of the approach to the assessment of risks, needs and the strengths of the people on probation and in prison. The resulting sentence and risk management plans will combine a new assessment and planning approach that incorporates the latest desistance research, supported by a new digital service. This new service will reduce the resource burden on front-line staff and ensure that assessment and planning practice better supports individuals, thereby achieving better rehabilitation and public protection outcomes.

Noble Lords will recognise that, although investment in staff numbers and technology are vital foundations, it is nothing without also supporting staff to have the right skills to spot risks and needs and to communicate those to the court. Our staff have access to a wide range of learning and development, including modules relating to court-specific roles and skills, ensuring that they are well equipped to work in this setting. The better trained they are, the better PSRs they will present.

The Probation Service has a dedicated court case assessment tool for line managers to quality assure pre-sentence reports. His Majesty’s Inspectorate of Probation also completes regular inspections of probation regions, with an assessment of court work included as a key component of this. Furthermore, the Probation Service seeks detailed feedback from sentencers on the quality of reports through an annual judicial survey. Through all this investment and improvement, our aim is that, whenever a court orders a pre-sentence report, it can be confident that it is based on the fullest information and a thorough analysis of risks and needs; and that it answers the right questions the court is wanting to understand.

I recognise that the noble Lord’s amendment now specifically refers to scenarios where a sentencer will likely need to decide between imposing a community or a custodial sentence. I completely agree with the noble Lord that pre-sentence reports can be particularly helpful in these kinds of cases. These reports provide sentencers with an effective assessment of risk and targeted assessments of the individual’s needs. This then confidently articulates suitable sentencing proposals that balance public protection, punishment and rehabilitation. In doing so, they will consider a range of disposal options, setting out the best use of credible community sentences where appropriate.

I hope that it will offer some reassurance to the noble Lord that the revised imposition guideline already includes relevant texts in this spirit, which the Bill does not impact. Specifically, it states:

“A pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order and, where relevant, what particular requirements or combination of requirements are most suitable for an individual offender on either a community order or a suspended custodial sentence”.


Of course, it is for the sentencer to decide whether to order a pre-sentence report, and there is an existing obligation on courts to obtain a pre-sentence report unless they consider it unnecessary. The Bill does not change that.

I reiterate my thanks to the noble Lord, Lord Marks, for raising the importance of pre-sentence reports and increasing their use. As I have set out, the Government are committed to ensuring greater funding, capacity and efficiency for the Probation Service. I therefore urge the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful to the Minister for his helpful and detailed response. As I hoped he would, he has given an outline of the Government’s very real commitment to more and better pre-sentence reports. He has also detailed the considerable investment that the Government propose to make in the Probation Service and in the production of such reports. I completely agree with him as to the future role of technology in the Probation Service and in the production of these reports. In that spirit, I respectfully ask leave to withdraw the amendment.

Amendment 5 withdrawn.