Kirsty Brimelow KC, Vice Chair of the Bar and senior criminal practitioner, goes behind the headlines of the political row over the Sentencing Council to explain what pre-sentence reports are and why new legislation could be a distraction from the problems facing the criminal justice system.
Prior to a couple of months ago, I doubt that many outside a section of the legal profession would have heard of a pre-sentence report or the Sentencing Council. Few would have predicted that they would sit darkly in the heart of the Radio 4’s Moral Maze, as panellists rushed down dead-end paths trying to work out if the statue on the Old Bailey is blindfolded – it isn’t – or whether police charging actions had anything to do with judges – they don’t.
The Sentencing Council
The Sentencing Council is a creature of statute, established by the Coroners and Justice Act 2009 and has been operative since April 2010. Its main job is to produce guidelines on sentencing for the judiciary and criminal justice professionals. Its aim is to enable greater transparency and consistency in sentencing, whilst maintaining judicial independence. It also aims to increase public understanding of sentencing. It develops sentencing guidelines for specific offences as well as general guidelines.
Its statutory obligations are set out under section 120 and 121 of the Coroners and Justice Act 2009. Section 121 zooms in on how the Council is to articulate its sentencing guidelines, including considering culpability and harm. Section 121 is the statutory basis for the guidelines’ power to specify the type and range of sentence which may be appropriate for the court to impose upon the offender. Further it is the statute that directs the Sentencing Council to list statutory aggravating or mitigating factors as well as any other aggravating or mitigating factors which the Council considers are relevant in consideration.
The Sentencing Council comprises 14 members, including a majority of judges, from Court of Appeal to Magistrates’ Court, who are appointed by the Lady Chief Justice with agreement of the Lord Chancellor. Non-judicial members are appointed by the Lord Chancellor with the agreement of the Lady Chief Justice. They include the Director of Public Prosecutions and the Chief of Police. The Lord Chancellor and the Lady Chief Justice have a representative at every meeting of the Council.
New guidelines
The new guideline that dominated the news is an amended general guideline on requesting pre-sentence reports when a judge is considering a community or custodial sentence. It was published on 5 March 2025 and was due to come into force on 1 April 2025.
Lord Justice Davis, the Chair of the Sentencing Council, wrote a detailed letter to the Lord Chancellor setting out the 14 consultations that had occurred between 2022 and 2025 and the careful analysis of responses which, by vast majority, led to the published guidelines.
The Council’s definitive guidelines for blackmail and kidnap and false imprisonment offences come into effect on 1 April along with a package of changes to motoring-related guidelines.
However, the revised general guideline on the imposition of community and custodial sentences has been delayed, due to the introduction of a bill by the Lord Chancellor which would render it, in part, unlawful.
The controversy
The guidelines provide that a pre-sentence report will normally be considered necessary if the offender belongs to a non-exhaustive list of 10 cohorts or groups, ranging from pregnant or post-natal women, sole or primary carers and females to being from an ethnic minority, cultural minority and/or faith minority community.
It is this latter group that led to the “two-tier sentencing” accusation from the Shadow Lord Chancellor to the Lord Chancellor. In other words, it is asserted that there is special treatment for the last group alone.
However, aside from the ignoring the other listed groups, the list has to be read in the context of the preceding guidelines which state that the court must request and consider a pre-sentence report when considering the imposition of a custodial or community sentence unless is considers it unnecessary.
This means that the usual practice is for a judge to consider a pre-sentence report in all cases where a person might be imprisoned or sentenced to a community order. In fact, this is a statutory obligation under section 30 of the Sentencing Code. Also, specifically, the Sentencing Code requires the court to obtain a pre-sentence report if the offender is under 18 years old, unless unnecessary.
The guidelines further emphasise that, “PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentence requirements”.
Finally, the guidelines emphasise that the list of cohorts “is a non-exhaustive list and a PSR can still be necessary if the individual does not fall into one of these cohorts”.
So much for two-tier.
The list itself is a non-exhaustive 10 tiers and the context and law making it clear that the usual approach is for there to be pre-sentence reports for all offenders, if the court is contemplating sentencing them to a community or custodial sentence.
Pre-sentence reports
Generally, a community sentence cannot be passed without a pre-sentence report. This is because the person may not be suitable for community service due to previous failures, ill health, religious reasons (still relevant), childcare (still relevant), unwillingness and, increasingly, lack of an address.
Importantly, a pre-sentence report itself is by no means an indicator that the person will receive a lighter sentence. The premise that getting more information on a person through a pre-sentence report means that they will receive a lesser sentence is demonstrably false.
In the courts, advocates often have to address unfavourable pre-sentence reports that detail that their client is entirely lacking in remorse and repeatedly fails to comply with community sentences or pay fines. The decision as to the sentence imposed remains with the sentencing judge.
To add into the complex factual mix, HM Inspectorate of Probation has raised concerns as to the quality of pre-sentence reports. This is a disappointing but hardly surprising finding, given the demands upon the poorly resourced and overwhelmed probation service that now operates in the courts.
Worryingly, it also found that court reports for Black, Asian or minority ethnic groups were less likely to be sufficiently analytical and personalised.
The calm
The guidelines, that are currently lolling in the eye of the storm, provide judges and magistrates with a reminder to ensure that they have all information required as to the seriousness of the offence, reasons for offending and personal circumstances of the person before sentencing them to prison or a community order. They set out groups that, for unclear reasons, have been having a rough time of the criminal justice system.
The courts already should be applying the Equal Treatment Bench Book and regarding the whole of the guidelines.
However, the Lord Chancellor, whilst accepting that sentencing outcomes for people from minority ethnic communities are harsher, considered that it was the responsibility of the government to address it and that the Sentencing Council has trespassed into policy.
The Sentencing Council’s position is that judges and magistrates are responsible for sentencing and politicians need to ensure that they keep their tanks off their lawn and outside Westminster where they can implement policy.
Ultimately, a fully informed sentencing judge passes a better quality sentence which is more likely to be just. If it goes wrong, the sentence can be examined by the Court of Appeal.
What next?
Parliamentary time will be spent on the Lord Chancellor’s bill to amend section 120 of the Coroners and Justice Act 2009, adding that sentencing guidelines about pre-sentence reports “may not include provision framed by reference to different personal characteristics of an offender”.
Personal characteristics are defined as, “including, in particular race, religion or belief or cultural background”. Yet, in the courts, personal characteristics are relevant information for a sentencing judge.
I represented a schoolboy who was bullied because he was Muslim. In the days after the dreadful Manchester Arena bombing, he was called a “terrorist”, for no reason other than his religion.
In another case, a Black defendant had become angry and distrustful of the police due to being repeatedly stopped and searched. These factors contributed to the offending and needed to be understood by the court when determining sentence.
In another case, I defended a pregnant woman who would have given birth in prison. The bail applications had failed previously and risk to her and her baby needed detailed reconsideration by the court. Guidelines such as those nearly brought into force, would have assisted the justice of the case. She was released and her baby was born healthily in a hospital, free from prison guard shackles.
The issue with the Lord Chancellor’s proposed legislation is that it appears to be striding in the wrong direction. The courts are stretched enough without sentencing hearings being dragged into arguments on the difference between ‘personal circumstances arising from personal characteristics’ and ‘personal characteristics’ themselves.
The criminal justice system requires political attention, but not of this kind.
Preferable is heated political indignation over the cuts to legal aid and urgent requirement for proper investment in the criminal justice system. There are insufficient probation officers to complete the pre-sentence reports that everyone now is talking about, there is an alarming lack of barristers to prosecute and defend cases and legal aid solicitors are tumbling into the endangered zone. The courts are crumbling. Court rooms lie empty, even as the backlog of Crown Court cases surpasses 74,000, as there is not enough money allocated by governments, past and present, to run them.
There also is much to be discussed about the Sentencing Council and whether the practical application of its sentencing guidelines does increase public understanding of sentencing.
However, the argument over this one group of offenders has further drained the criminal justice system’s energy and resources through the fairness floor that the Sentencing Council was seeking to strengthen.
Kirsty Brimelow KC is Vice Chair of the Bar Council and practises in criminal, international and public law from Doughty Street Chambers. In 2021-2023, Kirsty was Vice Chair and then Chair of the Criminal Bar Association.
Listen to Kirsty talking about sentencing on BBC Radio 4's Moral Maze.