1: Clause 1, page 1, line 5, leave out from “may” to end of line 7 and insert “include provision framed by reference to any individual circumstances or personal characteristics of an offender, provided that the guidelines state that these can only be taken into account if the sentencer is of the opinion that they are (or may be) individually (or collectively) relevant to the determination of the appropriate sentence.”
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.
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.
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.
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I also have Amendment 6 in this group. As my noble friend said, we spent some time trying to understand what are characteristics and what are circumstances. There is sometimes quite a grey line between the two, and there are of course factors which may be both. My noble friend has referred to pregnancy. I realised after I had tabled the amendment that better than “an assessment which would be beneficial” would be “an assessment which would be suitable”—“suitable” being the word used in the sentencing code—or “appropriate”, which is a very good catch-all term. However, my point is clear enough.
My Lords, like my noble friend Lord Hailsham, I begin my remarks by apologising for not having been able to attend the earlier stages of the Bill. However, I am happy to say that, like my noble friend, I have read the report and I am reasonably up to date with the way in which the debates have gone.
I am very much attracted by what my noble friend said in support of his Amendment 1, and I speak from a position of some—but not a great deal—of experience as a sentencer. I was a recorder of the Crown Court for 15 years, from 1998 until about 2015, with time off when serving in the Government. One of the things I found most useful in dealing with what I thought was the most difficult task as a judge was the advice and help of the sentencing report.
If you are a High Court judge, you tend, if you are dealing with criminal cases, to deal only with life sentence cases. The job that you have to do when sentencing is to consider the tariff within the life sentence. This is difficult but not, perhaps, as complicated as having to deal with the multiplicity of sentences involved in road traffic cases, drug cases, dishonest acquisition cases, and so on, and obviously cases to do with assault and other forms of violence.
As a recorder, as a Crown Court judge and as a magistrate—I see the Minister, the noble Lord, Lord Ponsonby, is in his place—one is dealing with, in a sense, a much more complicated sentencing picture. The assistance of sentencing reports is huge and valuable. Anything that the Bill can do to make the life of the sentencer easier and to enable him or her to produce a juster sentence is to be welcomed, and the suggestion of my noble friend Lord Hailsham through his Amendment 1 provides the sort of assistance that I would very much have wished to have had as a low-level sentencer. It is perhaps more neatly encompassed in the suggestion through Amendment 2, tabled by the noble Lord, Lord Marks.
My Lords, I have not spoken before on the Bill, and frankly, like others, I was rather astonished that this was a topic requiring legislation at all. Like the noble and learned Lord, I have been what you would probably call a low-level sentencer for a number of years.
I will make two points. First, in recent years, in my experience, the quality of pre-sentence reports has greatly improved: from what were sometimes formulaic and feeble reports to nowadays, in my more recent experience, really providing an insight into the defendant’s background, life and attitudes, and conveying realistic recommendations. To that extent, they must always be regarded as helpful, greatly improving on, as the noble Viscount described, representations made by the legal representatives after a few moments in the cells or in the court corridor before coming into court.
Secondly, this experience has led me to adopt the attitude that, whenever in doubt, a report should be directed. I, for one, never regretted directing a report. For that reason, I certainly support Amendments 5 and 6. In other words, pre-sentence reports should, wherever possible and sensible, be the norm.
My Lords, I have not previously spoken on the substance of the Bill before, either, but I am very attracted by the noble Viscount’s amendment, for the reasons that he and the noble and learned Lord, Lord Garnier, have set out.
I think the Government have accepted that their Bill is not intended to prevent sentencers inviting pre-sentence reports in the case of personal characteristics. They are getting at the guidelines that should not take account of personal characteristics. However, there is a danger that, as the Bill stands, sentencers might be deterred slightly from seeking pre-sentence reports in the case of personal characteristics, even though, were the Bill not on the statute book, they would otherwise have done so.
The amendment of the noble Viscount, Lord Hailsham, sorts that out. It makes it absolutely clear that there is nothing to stop the sentencer seeking a pre-sentence report in the case of personal characteristics, if that is desirable for the purposes of the particular case. That is exactly what the legal position should be.
So, I strongly urge the Government to give close attention to Amendment 1 and indeed the amendment in the name of the noble Lord, Lord Marks, which, as has been said, seeks to achieve the same thing. This is consistent with what the Government think their Bill allows for, but there is a danger that it might not have the effect they seek, whereas the noble Viscount’s amendment would clarify the position in what everyone must agree is the right way.
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.
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?
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Much of the difficulty may arise out of the rush with which this Bill was introduced. The history of the disagreement between the Sentencing Council and the Lord Chancellor is well known. We still believe that this disagreement ought to have been sorted out without resort to emergency legislation. We say that, once the council had agreed to pause the guidelines for parliamentary consideration, this Bill was a misuse of the fast-track procedure. This was an issue rightly picked up by the Constitution Committee in its report, to which my noble friend Lady Hamwee referred. The Bill also pre-empts the careful independent sentencing review led by David Gauke, which would have had more of a free hand to consider proposals for the Sentencing Council had the Bill not intervened.
Our principal objection to this Bill is that it misguidedly seeks to tie the hands of the Sentencing Council. Its introduction followed the intervention of Robert Jenrick, who argued that the proposed new guidelines advocated a system of two-tier justice. Black and ethnic minority offenders, he said, would get pre-sentence reports, which would be likely to keep them out of prison, while white people would not. But that argument ignores the overwhelming evidence that black people are more likely to go to prison, and for longer, than white people, and that ethnic minorities face widespread discrimination right across the justice system—witness the well-respected and well-researched report prepared by David Lammy in 2017. The other cohorts mentioned in the proposed guidelines face similar disadvantage in the criminal justice system.
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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.
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.
Either way, both amendments appear to me to be trying to undo the political mess that has caused the arrival of the Bill. I understand the politics of all this; I am sure we all do. It is a thoroughly unnecessary Bill, one that the Government allowed themselves to be backed into a corner about. It may well be that they regret it. However, given that we have got the Bill, I invite the Government to pay close attention to the speech of my noble friend and to listen very carefully to my chambers colleague, the noble Lord, Lord Marks, when he comes to speak to Amendment 2.
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.