Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Timpson Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

Moved by

[Lord Timpson]

That the Bill be now read a second time.

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

My Lords, I want to extend my thanks to the many noble Lords who have already contributed to debates in this House on this matter, which have provided me and the Government with valuable food for thought. I am also grateful to the noble Lords with whom I have spoken about this Bill, who have shared their wise counsel and wealth of experience regarding the matters on which it touches.

I know that all noble Lords will be looking forward to my noble friend Lady Nichols’ maiden speech. I welcome her to this place, and I know we will all benefit from her vast experience in public service.

I will start by recapping how we got here, as I believe that it is important to understand the Government’s intention behind the Bill. The Sentencing Council’s imposition of community and custodial sentences guideline helps judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence. In deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where the court considers such a report to be unnecessary. Pre-sentence reports are used to give the courts more context for the offending behaviour in a given case to aid judges and magistrates in making informed sentencing decisions. The current imposition guideline makes it clear that pre-sentence reports offer valuable assistance to the court when it decides whether to impose a community or custodial sentence.

Under the last Government, the Sentencing Council consulted on a revised imposition guideline. This guideline was due to come into effect on 1 April this year and includes additional guidance on when courts should request pre-sentence reports. It noted that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. In effect, this could have led to offenders receiving differential treatment in terms of access to pre-sentence reports based on their faith or the colour of their skin. These changes were welcomed by the previous Administration.

By contrast, both the Lord Chancellor and I have been clear that that would be unacceptable—not least for the victims, who put their trust in the criminal justice system. Singling out one group over another undermines the idea that we all stand equal before the law, a principle that has been at the forefront of our justice system and our society for centuries. This is the position that the Lord Chancellor communicated in person and in writing to the Sentencing Council. The Lord Chancellor first used her existing power, meeting the Sentencing Council’s chair on 13 March to ask it to reconsider its approach. Unfortunately, the council declined to amend the guidelines significantly or re-consult on its approach. While the Sentencing Council remains of a different opinion from the Government, I am grateful to its chair, Lord Justice Davis, for the engagement he has had with the Lord Chancellor and for the cordial conversations that I know we will continue to have.

I am very thankful that, following its engagement, the Sentencing Council has paused implementation of the revised imposition guideline while Parliament has its say. I am also grateful to noble Lords who have shared their expertise in this area with me. It is clear that the intention behind the Sentencing Council’s changes to the guidelines was an honourable one: to address the inequalities in our justice system. The issue of disparities in the criminal justice system is a serious matter, and one which this Government are determined to address.

However, this is a question of policy, one which must be addressed by government, accountable to the public and Parliament, and via the ballot box. As noble Lords will be aware, this issue has prompted debate here, in the other place and publicly on the correct roles and responsibilities of the Sentencing Council, and the Lord Chancellor is carefully reviewing and considering all options. I am sure that that will be discussed more in your Lordships’ House in the months ahead.

However, I want to be clear that this is beyond the scope of the narrow Bill at hand today. The Sentencing Council, although only 15 years old, holds an important position within the justice system, and any changes to its function and powers must be considered carefully. I know that several noble and learned Lords have had roles on the Sentencing Council and its predecessor and will have valuable views to add as this is considered. It would not have been right to address this through this targeted and narrow legislation.

I am proud of our judiciary, and I know that they are the envy of the world: rightly respected for their independence, impartiality and fairness. I know that the Lord Chancellor takes her oath to defend the independence of the judiciary very seriously. I reassure noble Lords that nothing we are considering in terms of the future of the Sentencing Council will change the Government’s clear commitment to defend the rule of law.

I turn now to what the Bill does. Clause 1 amends Section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines about pre-sentence reports may not include provision framed by reference to offenders’ different personal characteristics, including race, religion, belief or cultural background. This would mean that any existing guidelines on pre-sentence reports which are framed by singling out personal characteristics would cease to have effect.

The Sentencing Council will therefore not be able to make such provision in future guidelines. The changes made by this clause therefore prevent the Sentencing Council making policy about when pre-sentence reports should be obtained. That would risk differential treatment before the law and would undermine public confidence in the criminal justice system.

In bringing forward the Bill, the Government’s objective is to help ensure equality before the law, so that offenders are treated according to their individual circumstances and not by virtue of their membership of a particular group. We have therefore used the term “personal characteristics” in the Bill to ensure that sentencing guidelines about pre-sentence reports cannot include provision framed by reference to any specific personal characteristic of an offender, and we have accompanied this by listing some characteristics in the Bill, including race, religion or belief, or cultural background.

However, this is a non-exhaustive list, intended to give context to the term. The Government intend that the Bill will also apply to a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy. We have also used the term “demographic cohort” in the Bill’s Explanatory Notes, to help provide additional context to the meaning of “personal characteristics”.

I will now make clear what the Bill does not do. It does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases—for example, those involving primary carers and victims of domestic abuse. The Bill does not interfere with the courts’ ability to request a pre-sentence report. The Sentencing Code is clear that courts must obtain pre-sentence reports unless they consider it to be unnecessary. The Bill does not affect this presumption. The independent judiciary will retain discretion to make decisions about where pre-sentence reports are necessary based on the facts of the case. The Bill does not stop the Sentencing Council advising, in general terms, that pre-sentence reports should be sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.

Also, as detailed in the Explanatory Notes, the Bill does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable. Recently, in R v Thompson, the Court of Appeal emphasised their importance in sentencing pregnant women or women who have recently given birth. In R v Meanley, the court referenced the value of pre-sentence reports for young defendants. In R v Kurmekaj, the defendant had a traumatic upbringing and vulnerability, and was a victim of modern slavery. The court considered that these factors meant that a pre-sentence report should have been requested. Instead, the Bill narrowly focuses on the issue at hand.

I welcome the use of pre-sentence reports, which are a valuable tool for sentencers in appropriate cases. The number of pre-sentence reports declined by 44% between 2013 and 2023. The Probation Service is under a huge amount of pressure, which is indicative of wider capacity issues in the system. This Government have acted quickly to create capacity within the Probation Service to ensure that our hard-working probation officers have more time for vital work such as this. We have announced plans to recruit a further 1,000 probation officers in the coming year, on top of the 1,300 extra probation officers recruited in the last financial year. I am continuing to work with the Probation Service to ensure that it can deliver a high and consistent standard of service.

We are also working to better understand what drives disparities in the criminal justice system. The Sentencing Council has acknowledged that the causes of disparities in sentencing outcomes are “unclear”. Understanding the data is the key first step to deciding what we must do to address these disparities. The Lord Chancellor set out during the Bill’s Second Reading in the other place that she has commissioned a review of the data held by the Ministry of Justice on disparities in the justice system. On the timeline for the review, noble Lords can rest assured that we are working at pace on this and will update the House in due course. I assure your Lordships that this is an issue which the Government take incredibly seriously and are determined to address. However, this cannot be done at the expense of equality before the law.

In conclusion, by preventing the Sentencing Council making guidelines on pre-sentence reports with reference to personal characteristics, this Bill ensures that we all continue to stand equal before the law. I urge noble Lords to support the Bill and the principle that drives it—of equality before the law. I beg to move.

--- Later in debate ---

[Lord Timpson (Lab)]

I start my closing speech by paying tribute to the noble and learned Lord Etherton. Being relatively new to this place, I never got to know him, but it is clear how much he was deeply respected and admired. He has been described as a kind person, which is something that I hope one day would be my epitaph.

I thank noble Lords for their valuable contributions over the course of today’s debate. The depth of knowledge and experience in this House has certainly been on full display. It has also been a pleasure to be in this place for the maiden speech of my noble friend Lady Nichols of Selby. I warmly welcome her to this place and look forward to working with her in the years to come, as she clearly has a lot to contribute.

I thank noble Lords who have raised perceptive questions over the course of today’s debate and those who have spoken to me privately. I hope they will feel that I have addressed their points in my closing remarks. If I do not cover them now, I will follow up in writing to address their points. As the noble and learned Lord, Lord Hope, said, words matter. I hope that my closing words matter and are helpful in answering noble Lords’ questions.

As I set out in my opening speech, the Sentencing Council’s revised imposition guideline risked differential treatment before the law. As we have discussed, this Bill is not about the wider role and powers of the Sentencing Council. It is not about restricting the use of pre-sentence reports. In fact, this Government are committed to increasing the use of pre-sentence reports. Rather, it is about the very specific issue of the Sentencing Council issuing guidelines on pre-sentence reports with reference to an offender’s personal characteristics, rather than all the relevant facts and circumstances of the case.

A number of noble Lords, including the noble and learned Lord, Lord Phillips, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Bach, have asked why this Bill is necessary and whether it was possible to resolve the matter with the Sentencing Council without primary legislation. In response, I would explain that we first exhausted all other options prior to introducing this legislation. The imposition guideline was due to come into effect on 1 April this year. Ahead of this, the Lord Chancellor used her existing power to ask the Sentencing Council to reconsider. Unfortunately, the Sentencing Council declined to revise the draft guideline. It was right, at that point, to act quickly to introduce the legislation.

As a result, the Sentencing Council decided to put the guideline on pause while Parliament rightly has its say, and we are grateful to it for doing so. By acting quickly, we prevented a guideline coming into effect which risked differential treatment before the law. This legislation has been necessary to achieve that and to clarify this Government’s commitment to equality before the law.

Noble Lords, including the noble Lord, Lord Beith, have questioned the scheduling of this Bill. I reassure noble Lords that the dates for Committee and Report have been agreed in the usual channels in the usual way.

The noble Lord, Lord Jackson of Peterborough, the right reverend Prelate the Bishop of Gloucester, the noble Baroness, Lady Fox, and my noble friend Lady Mattinson have spoken about the importance of trust and consistency in the justice system. As the speed with which we introduced the Bill demonstrates, this Government are definitive in their stance with regard to equality before the law. The issues that have been raised with regard to disproportionality in our justice system are the domain of government, politics and Parliament. This Bill serves to reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.

As my noble friend Lady Mattinson set out, we must work to preserve trust in our excellent legal system. I thank her for sharing her considered views on this. It is essential to victims that they are able to trust our legal system and know that everyone will be treated equally before the law. Implementing a sentencing guideline that could lead to differential treatment before the law puts trust in the legal system at risk, which is why we acted quickly to address this.

To address the question from the noble Lords, Lord Jackson and Lord Wolfson, about what this Bill means for the future of the Sentencing Council, I reiterate that the Sentencing Council has done valuable work, bringing consistency to judicial decision-making. However, developments on the imposition guideline have clearly revealed a potential issue, where the council is dictating policy that is not this Government’s and that does not express the will of Parliament. The Lord Chancellor is therefore reviewing the powers and function of the Sentencing Council. It would not be appropriate to deal with that wider issue through fast-track legislation, given the significant policy and constitutional issues involved. It is right to take the time to consider more fundamental reform like this. The Lord Chancellor will be considering all options and I know that many in your Lordships’ House will have valuable experience to contribute.

The noble Baroness, Lady Hamwee, and other noble Lords asked how this Bill interacts with the review of sentencing being led by David Gauke and ably supported by the noble and learned Lord, Lord Burnett. I reassure noble Lords that this Bill will not have any impact. This Bill is addressing the specific matter at hand regarding the Sentencing Council guidelines. The sentencing review is a wider review of sentencing, and we look forward to considering its recommendations in due course.

I turn now to the questions over the detail of the Bill, which were raised by the noble and learned Lords, Lord Thomas and Lord Hope, the noble Lords, Lord Verdirame, Lord Beith, Lord Bach and Lord Wolfson, and the noble and right reverend Lord, Lord Sentamu. What is clear from this debate is the Government’s objective to help ensure equality before the law. We are clear that an offender should be judged by a court on an individual basis, according to the particular facts and circumstances of their case. It is not for the Sentencing Council to set out in guidance that judgments should be made on the basis of personal characteristics such as race or ethnicity.

The Government have used the broad term “personal characteristics” to make it clear that any reference to preferential treatment for particular cohorts is unacceptable. The Bill states that personal characteristics include race, religion or belief, and cultural background, but these are examples and not a comprehensive list. “Personal characteristics” is intended to include a wide range of characteristics, such as sex, gender identity, physical disabilities and pregnancy status. This is broader than the concept of “protected characteristics” in the Equality Act, which is a closed list and not wide enough to address, for example, the reference in the guideline to being a member of a cultural minority.

After careful consideration, the Government have therefore concluded that the most appropriate and principled way to respond to the issues raised by the guideline is to use the broader concept of “personal characteristics” in the Bill. The term “demographic cohort” is used in the Bill’s Explanatory Notes. However, the use of “demographic cohort” was not intended to, and I believe does not, narrow the definition of “personal characteristics”. A demographic cohort is a way of describing people who share certain personal characteristics. It is used in the Explanatory Notes to provide additional context to the Bill, but it would not be an appropriate alternative to the current drafting and would, in my view, raise further difficult questions of definition regarding what amounts to a “demographic cohort”. The term “personal characteristics” is used and understood in other contexts, and the Government consider it is the best formulation to address the issues raised by the guideline.

The noble Lord, Lord Bach, raised concern over whether this Bill interferes with judicial independence. To be clear, this Bill does not in any way influence individual sentencing decisions. Individual sentencing decisions clearly remain a matter for the independent judiciary. However, as I have said previously, the issue of tackling disproportionate outcomes within the criminal justice system is a policy matter and should be addressed by Government Ministers. The narrow change introduced by the Bill targets aspects of the sentencing guidelines that relate to equality of inputs. We are therefore addressing a policy matter and are not encroaching on judicial independence.

It is regrettable that some of the recent debate has strayed into comments about individual judges and their decision-making. I know that the noble Lord, Lord Bach, will be reassured that this Government will always support judges to do their jobs independently. I know that the Lord Chancellor takes her duty to defend judicial independence very seriously. As a number of noble and noble and learned Lords have said today, we are very lucky to have a world-class and highly regarded judiciary.

The noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester, the noble Lord, Lord Marks, and the noble Baronesses, Lady Fox and Lady Nichols of Selby, have rightly raised concerns about probation capacity, which is something that I think about in my role on a daily basis. One knock-on effect of this is the consistency and quality of pre-sentence reports. This Government support the wider use and improvement of pre-sentence reports within our courts. I agree with the noble Lord, Lord Jackson, that they can be valuable in all cases and for all defendants, regardless of their membership of a certain cohort, and should be obtained unless a judge believes that they are unnecessary. We are committed to ensuring that pre-sentence reports are available when needed.

The noble Baroness, Lady Hamwee, asked what will happen to pre-sentence reports that are being prepared when the Bill comes into effect. I reassure her that there will be no impact on pre-sentence reports in the process of being prepared. This Bill is not about the ability of a court to request a pre-sentence report. The test remains that, under section 30 of the Sentencing Code, a PSR should be requested unless it is considered unnecessary. This is about council guidelines and the need to protect the principle of equal treatment before the law.

We have publicly outlined the steps we are taking to increase capacity in the Probation Service to enable it to undertake more valuable work such as this. Next year, we will bring 1,300 additional new trainee probation officers on board, but as noble Lords are well aware, and I have spoken to a number of noble Lords privately about this, it takes time to train and induct new staff to allow them to become the brilliant probation officers we so highly value. I have a lot to do to help our fantastic probation staff achieve what we know is possible in the service.

To support our probation staff, we are embracing technology, including AI. Work is ongoing that is improving the flow of information—so critical to an accurate assessment of an offender’s risk—and new tools are beginning to strip away a probation officer’s administrative burden. There is much more work still to do. However, given the challenges the Probation Service faces, new staff and better processes are not sufficient on their own. We need to think about how we use the Probation Service, which faces a case load of just over 250,000 offenders, more effectively.

The theme of the debate, highlighted by the noble Lord, Lord Marks, has been tackling disproportionality across the criminal justice system. We know that more must be done to address inequalities and we are committed to tackling racial disparities, as I am sure the noble Baroness, Lady Jones, will be pleased to hear. As the Lord Chancellor set out in the other place, and the noble Lord, Lord Wolfson, has questioned, she has commissioned a review into the data held by the Ministry of Justice on disparities, and we will carefully consider next steps. We are also taking action to increase diversity in our staff and working with the judiciary to make sure that our appointments are reflective of the society we serve. This has included supporting underrepresented groups to join the judiciary.

A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women. As the chair of the Women’s Justice Board, I have paid particularly close attention to this matter and have also spoken with board members. To be clear, nothing in the Bill prevents judges requesting pre-sentence reports for pregnant women, nor will it affect Court of Appeal case law, which states that a pre-sentence report is desirable in the case of pregnant or postnatal women. Judges will therefore continue to be able to request pre-sentence reports in cases where they ordinarily would, including, for example, appropriate cases involving pregnant women, and we expect this to continue. We are committed to achieving equal outcomes for women.

In conclusion, this is a targeted and specific Bill which serves to protect the important principles of equality before the law. I thank all noble Lords who have taken part in this debate and I look forward to engaging with them as the Bill progresses.

[Baroness Hamwee (LD)]

My Lords, before the Minister moves the Second Reading, he told the House, in justifying why the term “personal characteristics” is used here, that it is used in a number of contexts. I do not expect him to answer in detail now, but will he write to the House to explain what those contexts are so that we have them in our minds as well?

[Lord Timpson (Lab)]

I will very happily write. As noble Lords are aware, I am not an expert on the finer details of the law, so that would actually help me as well. I beg to move.

Bill read a second time and committed to a Grand Committee.