This explainer discusses the role of the Pre-Sentence Report (PSR) in light of the Sentencing Council’s recently amended guideline regarding the Imposition of Community and Custodial Sentences (hereafter, Imposition Guideline).[1] The updated guideline includes greater guidance for sentencers on the types of cohorts of defendants for whom a PSR may be beneficial when they are considering the appropriate sentence to impose for an offence. The previous version of this guideline made no reference to any particular cohorts and the guidance given to courts as to when a PSR may be required was less clear.
The PSR is the most objective source of information about the offender and the circumstances surrounding the offence. Courts rely on PSRs to better understand the circumstances of individual offenders; however, resource limitations means that it would be impractical to order a PSR in every case as this would further increase the workload of an already stretched Probation Service. The volume of PSRs has been in decline over the last fifteen years, reflecting pressure on resources. This created the need for clearer guidance on how the increasingly scarce PSR resources should be targeted.
Research has suggested that courts may need more information about certain profiles of offender. This being the case, guidance should alert sentencers to the kinds of offenders for whom a PSR may be particularly useful. For example, it may be challenging for some sentencers to understand the circumstances of young adults who have experienced trauma or significant social or familial problems in their adolescence. Encouraging courts to obtain a PSR for young adults does not create a two-tier sentencing regime, one for mature and one for young adults. It simply seeks to ensure that no legally relevant information about the offender is missed.
Women account for only approximately 22% of all sentenced offenders. As a result, courts may need to seek additional information about the offending circumstances of female offenders. Again, encouraging sentencers to request a PSR when sentencing a female offender does not create a twin track, male-female sentencing regime. It simply attempts to ensure that sentencers understand the circumstances of female offenders to a comparable extent to male offenders.
The Imposition Guideline is consistent with guidance contained in the 2024 Equal Treatment Bench Book (ETBB)[2] issued by the Judicial College which notes that:
.. judges must also be equipped with the information they need. Pre-sentence reports (PSRs) may be particularly important for shedding light on individuals from cultural backgrounds unfamiliar to the judge. This was vital considering the gap between the difference in backgrounds – both in social class and ethnicity – between the magistrates, judges and many of those offenders who come before them. The Review said judges have received guidance discouraging them from using PSRs altogether for some offences, which includes drug offences, precisely the area where sentencing discrepancy has been identified.’ (emphasis added).
In order to assess the relevance and weight of sentencing factors, courts need to ensure that all relevant information about the offender and the offence is available at the time of sentencing. Sentencers should be aware that certain circumstances may be more commonly present in the social backgrounds of ethnic minority defendants, and this is what the relevant paragraphs of the ETBB address. The Council’s guidance encourages courts to consider the sentencing process in the context of the defendant’s social background, and to avoid a mechanical application of the guidelines which assumes that all offenders share a common set of circumstances. One practical consequence is that courts may find it necessary to take additional steps in order to ensure that this information to be brought to court. The PSR is the primary means of providing information about the offender.
The ETBB also notes that:
‘More than half of the judiciary are white men. People from ethnic minority groups are underrepresented in the judiciary… the proportion from black backgrounds has stayed the same at 1%.’[3]
One consequence of this disproportionality is that PSRs may be particularly beneficial in assisting sentencers to understand the circumstances of people from some minority backgrounds.
PSRs contain information about the offender. They do not contain specific sentence recommendations and do not determine sentencing outcomes. They represent a source of information along with others such as the Victim Personal Statement and a PSR may well find that there are no additional legally relevant circumstances to take into account. Courts have the discretion to request a PSR or to proceed to sentencing without one. The purpose of the Council’s guidance is to assist courts by suggesting the kinds of cases for which a PSR may be particularly useful. The decision to request a PSR, and the sentence imposed remains a matter wholly for the sentencing court to determine.
[1] https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/imposition-of-community-and-custodial-sentences-overarching-guideline/.
[2] https://www.judiciary.uk/wp-content/uploads/2022/09/Equal-Treatment-Bench-Book.pdf.
[3] https://www.judiciary.uk/wp-content/uploads/2022/09/Equal-Treatment-Bench-Book.pdf at p. 148.
