Eighth Report
Sentencing Guidelines (Pre-Sentence Reports) Bill
Introduction
1.The Sentencing Guidelines (Pre-Sentence Reports) Bill was introduced in the House of Lords on 1 May 2025. The Bill completed its House of Commons stages on 30 April, having been introduced on 1 April. The Government is seeking to expedite the Bill’s parliamentary passage.
2.The Bill responds to draft sentencing guidelines issued by the Sentencing Council in accordance with its powers allocated by the Coroners and Justice Act 2009. The Guidelines on the Imposition of Community and Custodial Sentences (the Guidelines) were published by the Sentencing Council on 5 March 2025. The Guidelines, in part, are concerned with the circumstances in which a pre-sentence report may be requested by a court, in order that the court can be fully appraised of the offender’s individual circumstances and impose an appropriately evidence-based sentence.1 The Guidelines–inter alia–state that “a pre-sentence report will normally be considered necessary” if the offender belongs to one or more cohorts, including “an ethnic minority, cultural minority, and/or faith minority community.” The Bill responds to this element of the proposed Guidelines.
3.The Bill contains only two clauses. Clause 1 amends section 120 of the Coroners and Justice Act 2009 in order to stipulate that “Sentencing Guidelines about obtaining pre-sentence reports may not be framed by reference to the personal characteristics of an offender.”2 Clause 2 specifies that the Bill will apply in England and Wales only and will come into force the day after the day on which it is passed.
Legislative uncertainty
4.Clause 1(1) of the Bill provides that “pre-sentence reports may not include provision framed by reference to the personal characteristics of an offender.” Clause 1(3) provides that “‘personal characteristics” include, “in particular”, “race”, “religion and belief” and “cultural background.” In response to questions from the Joint Committee on Human Rights, the Government said that this is a “non-exhaustive list and personal characteristics is also intended to cover a wider range of characteristics including sex, gender identity, age, physical disabilities and pregnancy status.”3 The Government also noted in its letter to the JCHR that the Bill would “not prevent the Sentencing Council from issuing guidelines that advise courts in general terms, to consider an offender’s personal circumstances”.4 The Minister also confirmed this at Second Reading in the House of Commons.5
5.In the explanatory notes to the Bill, the Government suggests that “[n]othing in the Bill prevents the council from issuing guidelines advising courts to consider the offender’s personal circumstances in deciding whether to request” a pre-sentence report.6 There is no explanation of the difference between “personal characteristics” and “personal circumstances”.
6.The Bill’s “non-exhaustive list” of “personal characteristics” is insufficiently clear and introduces unnecessary legislative uncertainty in relation to the potential reach of the Bill.
7.In the Bill’s explanatory notes,7 the Government has stated that the Bill is not intended to impact upon case law concerned with whether pre-sentence reports are needed or desirable (e.g. R v Thompson concerning the desirability of a pre-sentence report in relation to an offender who is pregnant or has recently given birth8) or limit judges’ ability to request pre-sentence reports in circumstances in which they ordinarily would do so (for instance, in relation to young people9).
8.Nonetheless, the Government confirmed in its response to the Joint Committee on Human Rights that both pregnancy status and age would be deemed as “personal characteristics” and the Sentencing Council would, should this Bill pass, not be able to issue guidance regarding the use of pre-sentencing reports in those circumstances where case law applies. They added that such limitations on the contents of Sentencing Council guidance would not impede the ability of individual judges from requesting a pre-sentencing report where, in its own judgement it is necessary.
9.In light of this, the House may wish to satisfy itself that the Bill will not adversely impact upon the authority of existing case law in this sphere.
10.The text of the Bill does not specify whether it is intended to impact historic guidelines issued by the Sentencing Council. However, in a letter to the Joint Committee on Human Rights, the Government confirmed its expectation that these measures would “as a matter of law, affect both new and existing guidelines”10. As such, the Government intends that the Bill have retrospective effects.
11.This Committee has argued that while retrospective legislation may be lawful, “from a constitutional point of view it should wherever possible be avoided, since the law should as far as possible be clear, accessible and predictable.”11 In recognition of this—and unless made clear by express words or necessary implication—courts will presume that legislation will not apply retrospectively.12
12.To avoid additional uncertainty as to the Bill’s effects, its impact on operative sentencing guidelines ought to be made explicit.
13.It is inappropriate for the policy intentions of a piece of legislation to not be on the face of the Bill and instead only available via correspondence with a Select Committee.
14.The Bill should be amended to ensure appropriate legislative certainty and clarity. The Government should either provide a full definition of the “personal characteristics” on the face of the Bill or adopt an alternative term which is clearly legally defined.
15.If the Bill is intended to have retrospective effects—in other words is intended to apply to sentencing guidelines which are already operational—then this should be made explicit on the face of the Bill.
Fast-track legislation
16.The Bill is being fast-tracked. In 2009 the Constitution Committee described “fast-track legislation” as “legislation [that] passes through the stages of scrutiny in both Houses at a faster rate than normal” and indicated those constitutional principles which “should underpin the consideration of fast-track legislation”. Those principles are:
(a)The need to ensure the maintenance of effective parliamentary scrutiny;
(b)The need to ensure that the technical quality of legislation is upheld and improved;
(c)The importance of allowing for stakeholder input;
(d)The need to ensure that legislation is a proportionate, justified and appropriate response to the matter in hand and that fundamental constitutional rights and principles are not jeopardised;
(e)The need to maintain a transparent law-making process.
17.In this case, the Government justifies the use of a fast-track legislative process on the basis of time pressure; the Guidelines were due to come into effect on 1 April 2025 and the Government argues that expediting the Bill is required “to remediate the effect of [taking demographic cohort into account as a factor in determining whether a pre-sentence report is necessary] as soon as possible in the interests of fair and equal justice.”13
18.Following a meeting between the Lord Chancellor and the Chairman of the Sentencing Council, in which the Lord Chancellor set out her intention to introduce legislation, the Council chose to delay the in-force date of the Guidelines pending such legislation.14
19.Considering the delay to the in-force date of the Guidelines, we do not view it necessary for the fast-track procedure to be used for this Bill.
20.The position of the Sentencing Council is set out in the Coroners and Justice Act 2009, and it follows that legislative amendment of the powers allocated to the Council is a prerogative of Parliament. For the time being, Parliament has—via the Coroners and Justice Act 2009—entrusted the power to design sentencing guidance to the Sentencing Council, an independent body with a majority judicial membership. It stands to reason that Parliament can amend these powers.
21.This Bill is designed to override a proposal taken—following the process required by the Coroners and Justice Act 2009—by a body with particular judicial characteristics. As Davis LJ has observed: “[t]here is a general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority.”15
22.Legislation overriding a Sentencing Council process carried out in accordance with statutory requirements ought not to proceed without full examination of the potential implications for the standing of the Sentencing Council and its future decision-making. This could be inhibited by the fast-track approach to the legislation.
23.The Government should set out clearly its reasoning for continuing with an expedited legislative timetable and the House may wish to satisfy itself that this this approach is proportionate and justified in these circumstances.
1 Sentencing Council, ‘Sentencing Council publishes comprehensive new guidance on imposing community and custodial sentences, (5 March 2025): https://www.sentencingcouncil.org.uk/news/item/sentencing-council-publishes-comprehensive-new-guidance-on-imposing-community-and-custodial-sentences/ [accessed 7 May 2025]
2 Explanatory Notes to the Sentencing Guidelines (Pre-Sentencing Reports) Bill [Bill 217(2024–25)-EN], para 14
3 Letter from Sir Nic Dakin MP, Parliamentary Under Secretary of State at the Ministry of Justice, to Lord Alton of Liverpool, Chair of the Joint Committee on Human Rights (24 April 2025): https://committees.parliament.uk/publications/47708/documents/249281/default/
4 Ibid.
5 HC Deb, 22 April 2025, col 999 [Commons Chamber]
6 Explanatory Notes to the Sentencing Guidelines (Pre-Sentencing Reports) Bill [Bill 217(2024–25)-EN], para 11
7 Ibid.
8 Thompson, R. v [2024] EWCA Crim 1038 (16 August 2024)
9 Hansard, HC Debs, vol.765, col.183, 1 April 2025 (the Lord Chancellor).
10 Letter from Sir Nic Dakin MP, Parliamentary Under Secretary of State at the Ministry of Justice, to Lord Alton of Liverpool, Chair of the Joint Committee on Human Rights (24 April 2025): https://committees.parliament.uk/publications/47708/documents/249281/default/
11 House of Lords Select Committee on the Constitution, Job Seekers (Back to Work Schemes) Bill, (12th Report, Session 2012–13), HL Paper 155), para 14
12 See eg: Phillips v Eyre (1870) LR 6 QB 1, 23.
13 Explanatory Notes to the Sentencing Guidelines (Pre-Sentencing Reports) Bill [Bill 217(2024–25)-EN], para 24
14 Sentencing Council, ‘Statement on the revised Imposition of community and custodial sentences guideline, (31 March 2025): https://www.sentencingcouncil.org.uk/news/item/statement-on-the-revised-imposition-of-community-and-custodial-sentences-guideline/ [accessed 7 May 2025]
15 Letter from the Chair of the Sentencing Council to the Lord Chancellor, 10 March 2025: https://www.sentencingcouncil.org.uk/wp-content/uploads/20250310-Letter-from-Lord-Justice-William-Davis-to-Lord-Chancellor-on-Imposition-FOR-PUBLICATION.pdf [accessed 7 May 2015]