Sentencing Guidelines (Pre-sentence Reports) Bill

[Caroline Nokes in the Chair]

I remind Members that in Committee they should not address the Chair as Madam Deputy Speaker. Please use our names when addressing the Chair. Madam Chair, Chair and Madam Chairman are also acceptable.

Clause 1

Sentencing guidelines about pre-sentence reports

I beg to move amendment 1, page 1, line 6, leave out

“different personal characteristics of an offender”

and insert

“an offender’s membership of a particular demographic cohort.”

With this it will be convenient to discuss the following:

Amendment 3, page 1, line 7, at end insert—

“(2A) After subsection (7) insert—

‘(7A) In the case of guidelines within subsection (4) about pre-sentence reports, the Council must, after making any amendments of the guidelines which it considers appropriate, obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines.

(7B) In any case to which subsection (7A) applies, the Secretary of State may—

(a) consent to the issuing of guideline as definitive guidelines,

(b) refuse consent for the issuing of guidelines as definitive guidelines, or

(c) direct the Council to issue the guidelines in an amended form as definitive guidelines.

(7C) Where the Secretary of State has consented to the issuing of guidelines under subsection (7B)(a) or has directed the Council to issue guidelines in an amended form under subsection (7B)(c), the Council must issue the guidelines as definitive guidelines in the appropriate form”.”

Amendment 2, page 1, leave out line 10 and insert—

““a particular demographic cohort’ may include those related to—”.

Amendment 4, page 1, line 13, at end insert—

“(d) status as part of a group that may have experienced trauma from experiences of racism or discrimination—

(i) inter-generationally and relayed to the defendant, or

It is worthwhile at the outset of all debates on this Bill to restate that it is about pre-sentence reports that give information to sentencers that may be used in sentencing decisions, not about the passing of sentences themselves. Specifically, the Bill is about the guidelines issued by the Sentencing Council to sentencers about the circumstances in which a pre-sentence report should normally be asked for, and about the sort of information about an offender which such a report may provide and which may be appropriate to consider and take into account before deciding on an appropriate sentence in that offender’s case.

There has been broad agreement—I see the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), in her place, so I will not say unanimity—that an offender’s ethnicity, race, culture or faith are on their own not that sort of information and that the Sentencing Council was wrong to suggest that pre-sentence reports should be awarded on that basis. I would argue that is because, even if there may be points to make about the treatment or experience of members of the ethnic, faith or cultural group to which the offender in question happens to belong, what is relevant to the sentencing of that offender can only be the treatment or experience to which the particular offender has themselves been subject, not whether they have arisen in the cases of other members of the same group who are not before the court. That is effectively the impact of amendment 4 in the name of the shadow Minister, my hon. Friend the Member for Bexhill and Battle (Dr Mullan). That is why the Government are right to seek to exclude even from the process of asking for a pre-sentence report—let alone from passing sentence itself—the making of decisions based only on membership of such a group. That is after all what the Government have said this Bill is for.

These groups are described in the explanatory notes to the Bill as “particular demographic cohorts”. Paragraph 8 says,

I defer to my right hon. and learned Friend’s experience, but is there not an argument for every case to have a pre-sentence report in order to truly understand what an individual has faced and whether there are any mitigating factors? I appreciate that that could create a backlog for these services, but is it not one possible solution to the problem that the Sentencing Council was worried about—namely, that different cohorts might have different sentencing outcomes?

My hon. Friend makes a fair point in relation to offenders who hover on the border between community sentences and custodial sentences, but he will know that, in the Crown court at least, the majority of such offenders already have a pre-sentence report. Of course, there are also offenders who come before the courts for sentencing and it is blindingly obvious either that a custodial sentence will follow, or that neither a community sentence nor a custodial sentence is realistically in prospect, so I do not think it right to say that we should have a pre-sentence report in every case, but there is already in law a presumption that pre-sentence reports should be ordered unless it is unnecessary to do so. What we are seeking to do here is respond to a very specific set of circumstances that have arisen as a result of a Sentencing Council decision. As he may have heard me say on Second Reading, I do not think that the Sentencing Council handled this well, and as a result we are having to do something that we would otherwise not have to do.

Sentencing offenders is, in all circumstances, a difficult business. The fact that different offenders receive different sentences, even for the same offence, is not necessarily evidence of a defect in sentencing practice as a result of guidelines or otherwise, but is more likely a reflection of the reality that every case and every offender is different. We should not, I suggest, try to stop judges reaching the appropriate conclusion, assisted by Sentencing Council guidelines, in each case before them.

Nobody is trying to stop judges sentencing in individual cases. All the Sentencing Council was seeking to do was ensure that judges and magistrates had the maximum amount of information before coming to a decision on the sentence.

Yes, I think the right hon. Lady is right that that is what the sentencing guidelines were aiming at, but I am afraid that the way in which they were phrased rather missed the mark, in my view. It is perfectly true to say that it is a good thing in most sentencing cases to get as much information as possible, but the sentencing guidelines have, as she will appreciate, particular influence on sentencers, who are obliged to follow them unless doing so is not in the interests of justice. The tone that is set by the Sentencing Council in the guidelines that it drafts gives a good indication to sentencers about the sorts of things that they ought to take into account in sentencing. As she heard me say—I think this is an important point to make—we are talking about the ordering of pre-sentence reports and not about sentencing itself.

None the less, as I said, without a pre-sentence report, the number of options that can be imposed are limited, and with a pre-sentence report, sentencers have more options, so whether sentencers are encouraged to order pre-sentence reports is not irrelevant. My concern is that the way in which the Sentencing Council has gone about this is unhelpful. However—the right hon. Lady will hear me expand on this—it would be wrong to throw the baby out with the bathwater, and it is also important to recognise that some of the Sentencing Council guidelines are profoundly helpful to sentencers; they indicate that we should, in many cases, get relevant information when considering individual sentencing decisions. For all those reasons, we should fetter the sentencing process only as much as we need to in order to meet legitimate policy objectives, where genuine questions of policy arise. That is, after all, what the Government said they were trying to do here.

Amendment 1 would allow us to stop the Sentencing Council recommending pre-sentence reports for those who simply belong to a demographic group, but not exclude them for those who have other personal characteristics that are clearly more relevant to the sentencing decision and do not, I suggest, give rise in any way to so-called two-tier justice. The Bill will still allow the Sentencing Council to issue guidelines recommending pre-sentence reports to explore the personal circumstances of an offender who is to be sentenced, even though it will prohibit that in relation to the offender’s personal characteristics, so the question arises of whether all the information about an offender that sentencers should properly take into account in sentencing can be justifiably described as the offenders “personal circumstances”.

I will concede that there is a danger of getting into fairly fine semantic distinctions here, but to me at least, “characteristics” are things that are intrinsic to the offender, while “circumstances” are the situations in which offenders find themselves. The two are not the same. For example, being pregnant, addicted, a primary carer, or a victim of abuse, grooming or modern slavery could all be sensibly described as personal circumstances, but disabilities or life-altering permanent injuries feel more like characteristics.

We do not need to get into all this in order to do the job that the Government want to do. Ministers have made it clear that they are seeking to target this legislation carefully to avoid trespassing on the separation of powers, and because they are not seeking to undermine the independence of the Sentencing Council any more than is necessary to wrest back control of what are properly matters of policy. I suggest to the Minister that the more precise wording in amendment 1—it is, of course, also Government drafting, because it appears in the explanatory notes—better meets the Government’s own aims than the language in the Bill. If he does not agree, I hope that he will explain clearly in this debate why the Government have taken a more expansive approach.

Finally, let me address amendment 3 in the name of the shadow Minister, my hon. Friend the Member for Bexhill and Battle (Dr Mullan), and other right hon. and hon. Friends. As my hon. Friend the shadow Minister knows, I also have concerns about the breadth of the language in that amendment. I recognise that some people would like to abolish or radically reform the Sentencing Council, but the Bill does neither of those things, meaning that its scope does not allow for a wider debate about the council’s wider purpose and value—of course, you would not allow that debate either, Madam Chairman.

As and when the Bill passes, the Sentencing Council will continue to operate, so when we consider amending the Bill further, we must have regard to the council’s ability to operate effectively and convincingly. It can play its role in the criminal justice system effectively only if the guidelines that it produces are authoritative. Sentencers are likely to see them as such only if the Sentencing Council is clearly independent, and is seen to make its judgments from a legal, not a political, perspective.

Amendment 3 states that all Sentencing Council guidelines involving pre-sentence reports must be agreed by the Secretary of State, and that the Secretary of State may, if she so chooses, rewrite those guidelines. There are two problems with that. First, the Lord Chancellor has made clear and sensible distinctions between guidelines that relate to matters of policy and those that relate to matters of judicial discretion in specific sentencing cases, with the latter being matters for the judiciary alone. I am not convinced that all conceivable guidelines relating to pre-sentence reports will qualify as matters of policy, so taking political control of all such guidelines would not be appropriate.