Background
On 1 April 2025, the Government published the Sentencing Guidelines (Pre-sentence Reports) Bill. It will have its Second Reading on 22nd April. This draft legislation amends the Coroners and Justice Act 2009 to prevent sentencing guidelines about pre-sentence reports (PSRs) from making reference to ‘different personal characteristics’ of an offender. The legislation follows the recent disagreement between the Government and the Sentencing Council over the revised version of the Imposition of community and custodial sentences sentencing guideline.
This briefing summarises the background to the Bill. As well as outlining the effect of the Bill itself, it discusses the potential implications of Parliament legislating revisions to sentencing guidelines issued by the independent Sentencing Council. The document follows two Explainers produced by the Sentencing Academy that discussed the role of pre-sentence reports at sentencing and the relationship between the Government, Parliament and the Sentencing Council.
The Revised Guideline
The revised version of the Imposition of community and custodial sentences guideline was a substantial revision of the version that had been in force since February 2017, which provided more detailed guidance on a number of the decisions that sentencers commonly have to make.
Under section 30 of the Sentencing Act 2020, the court must obtain and consider a pre-sentence report for an adult offender, ‘unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report’. The previous version of the guideline made no reference to any particular cohorts of defendants for whom a PSR may be especially beneficial when a court is considering the appropriate sentence to impose.
The revised guideline advises sentencers that a pre-sentence report will normally be considered necessary if the offender belongs to one (or more) of several cohorts. These include someone at risk of a first custodial sentence and/or at risk of a custodial sentence of two years or less; a young adult; female; from an ethnic minority, cultural minority, and/or faith minority community; pregnant or post-natal; and sole or primary carer for dependent relatives. The guideline emphasises that: ‘This is a non-exhaustive list and a PSR can still be necessary if the individual does not fall into one of these cohorts’.
The guideline was subject to a public consultation process undertaken by the Sentencing Council between 29 November 2023 and 21 February 2024. The Council’s response to consultation document states that ‘a much higher number of respondents supported retaining the list’ [of cohorts]. The General Election took place on 4 July 2024, and the Sentencing Council note that the revised guideline, and responses to the consultation, were discussed at Council meetings, which are attended by Ministry of Justice representatives, between 26 July 2024 and January 2025.
Disagreement between the Sentencing Council and the Government
On 5 March 2025, the Sentencing Council published the finalised version of the revised guideline, alongside its response to the consultation. Following a question on the subject in the House of Commons, the Lord Chancellor announced that the Government disagreed with the guideline, and specifically the inclusion of the ‘ethnic minority, cultural minority, and/or faith minority community’ cohort.
According to published correspondence, the Lord Chancellor met with the Chairman and members of the Sentencing Council on 13 March 2025 to discuss the matter. In her subsequent letter, she stated that ‘I am requesting that the full list of cohorts for whom a pre-sentence report will ‘normally be considered necessary’ is removed.’ Thereafter, the Sentencing Council convened to discuss the issue in light of the Lord Chancellor’s concerns. The Coroners and Justice Act 2009 specifies that if the Lord Chancellor makes a proposal, the Sentencing Council’s obligation is to ‘consider whether to’ revise a guideline as proposed. In this instance, the Sentencing Council declined to further amend the guideline, and the Lord Chancellor then proceeded to introduce the new Bill.
Sentencing Guidelines (Pre-sentence Reports) Bill
The Sentencing Guidelines (Pre-sentence Reports) Bill is a short piece of legislation, sufficiently so that it may be reproduced here in full:
1 Sentencing guidelines about pre-sentence reports
(1) Section 120 of the Coroners and Justice Act 2009 (sentencing guidelines) is amended as follows.
(2) After subsection (4) insert—
“(4A) But sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender.”
(3) After subsection (11) insert—
“(12) For the purposes of this section—
“personal characteristics” include, in particular—
(a) race;
(b) religion or belief;
(c) cultural background;
“pre-sentence report” has the same meaning as in the Sentencing Code (see section 31 of the Code).”
The scope of the Bill is narrow; it is solely concerned with pre-sentence reports, and affects no other area of the revised guideline. However, its impact as drafted may be considerably broader than excising the cohort that was the subject of debate.
The legislation does not define ‘personal characteristics’ other than to say that it includes (a) race; (b) religion or belief; and (c) cultural background. Other personal characteristics are not mentioned, but the accompanying Explanatory Notes appear to confirm that the purpose of the Bill is “to prevent potential differential treatment arising from the Sentencing Council’s Imposition guidelines, reinforce equal access to pre-sentence reports and support consistency in application across all demographic groups”.
As a result, the Bill also strikes reference to all other enumerated offender profiles, including young adults; female offenders; pregnant or post-natal offenders; those with sole or primary caring responsibilities; those who have disclosed that they are transgender; those with serious medical conditions, physical disability or mental health or learning difficulties; those whom the court considers to have been or who may be the victim of domestic violence or abuse; modern slavery or trafficking and coercion, grooming or intimidation.
Wider implications
The possible implications of this legislation therefore go far beyond the removal of certain cohorts of offenders from a list of the categories of offenders for whom a pre-sentence report will normally be considered necessary. There may even be wider implications: in one of her letters to the Sentencing Council the Lord Chancellor wrote: ‘I consider this issue to be a question of policy’, but if guidance regarding the profiles of offenders for whom a court should normally request a PSR is a sentencing policy, sentencers may be concerned about other elements of guidance constituting a policy.
For example, the same guideline notes that ‘Deferring sentencing may be particularly appropriate for young adults (typically 18-25 years of age)’. It is now arguably less clear whether this provision may be challenged in future, since it too links a personal characteristic (age) directly to a potential sentencing outcome (and not just access to a pre-sentence report). It is to be hoped that clarity on this point emerges as the Bill is debated.
There may also be consequences for other general and offence-specific guidelines, several of which include reference to the offender’s ethnicity – the same personal characteristic excluded by the current Bill. For example, the guideline for the offence of Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another includes the following advice to courts:
‘Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders and that for Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 152 to 167 of the Equal Treatment Bench Book. (emphasis in original).’
This advice directs courts to seek guidance from a source external to the guidelines (like a PSR). It also identifies a specific cohort, ‘Black, Asian and Other Ethnicity Offenders’, for whom additional guidance may be sought. If it is inappropriate for guidelines to identify ethnicity when sentencers are considering seeking a pre-sentence report, then sentencers may very reasonably ask whether they should continue to follow the approach set out in the other guidelines and use the information provided by the Judicial College in the Equal Treatment Bench Book.
Effect on Future Consultation Exercises
Perhaps the most significant outstanding question is whether this legislation will set a precedent that could mean further direct input from the legislature into sentencing guidelines. This would have a substantial impact on the Sentencing Council’s work; for example, its ability to conduct effective public consultation in future.
The Sentencing Council conducts a public consultation exercise whenever it issues or revises a guideline. This is an important aspect of its public engagement work. At present, potential consultees provide feedback on a final draft guideline. If potential consultees know they are responding to a proposal that may be substantively amended or cancelled by Parliament, would they be as likely to submit responses?
Effect on Judicial Confidence in the Guidelines
It is important that the judiciary retain confidence in the guidelines. Until now, the guidelines have been issued by an independent, primarily judicial body, following a public consultation exercise. If this Bill is passed, it will be unarguably the case that the relevant part of the revised Imposition guideline will not have been endorsed by the Sentencing Council and the majority of consultees. This may damage sentencers’ confidence and willingness to rely on the guidelines, and could lead to less consistency in sentencing outcomes.
Thus, an apparently simple Bill creates many complex challenges for the Sentencing Council, perhaps leading to a fundamental change in the functions it is able to perform. We hope that Parliament will carefully consider this legislation and take the opportunity to address these outstanding questions so that the impact of the Bill does not exceed its intended scope, and the established system of sentencing guidelines in England and Wales is not inadvertently undermined or a precedent set that would be unhelpful for all concerned.
Download the Briefing here.
