New sentencing guidance improves current two-tier system

Our prison system is full to bursting. Early releases and expansion plans have not abated the fear that soon we will run out of space completely. Insufficient resources mean that those in prison are often not getting the support they need. Depriving someone of their liberty is the most serious punishment the state can impose and I do not consider it controversial that it should not be done lightly and where it is necessary, it should be done on a fully informed basis.

The changes to the sentencing guidelines published on 5 March do just that. They are just guidance and do not require judges to take a particular course of action. What they do is ensure that when judges sentence people, they have enough information about the person to make a reasoned and justifiable decision. Pre-sentence reports do not bind a judge.

What are pre-sentence reports? According to HM Prison & Probation Service: 'The purpose of a pre-sentence report (PSR) is to facilitate the administration of justice, to reduce an offender’s likelihood of re-offending and to protect the public and/or victim(s) from further harm.'

[Social media platform] X is full of screenshots from the new 'imposition' guidance for magistrates and Crown court judges that list instances when a pre-sentence report will 'normally be necessary'. This is not, as the shadow justice secretary stated on the Today programme yesterday, a 'blanket' approach.

The guidance makes it clear that it 'is a non-exhaustive list and a PSR can still be necessary if the individual does not fall into one of these cohorts'.

The list of individuals who should have the benefit of a pre-sentence report includes anyone who belongs to one of the following cohorts:

• at risk of first custodial sentence and/or at risk of a custodial sentence of 2 years or less (after taking into account any reduction for guilty plea)
• a young adult (typically 18-25 years)
• female
• from an ethnic minority, cultural minority, and/or faith minority community
• pregnant or post-natal
• sole or primary carer for dependent relatives

Or if the court considers that one or more of the following may apply to the offender:

• has disclosed they are transgender
• has or may have any addiction issues
• has or may have a serious chronic medical condition or physical disability, or mental ill health, learning disabilities (including developmental disorders and neurodiverse conditions) or brain injury/damage

Or the court considers that the offender is, or there is a risk that they may have been, a victim of:

• domestic abuse, physical or sexual abuse, violent or threatening behaviour, coercive or controlling behaviour, economic, psychological, emotional or any other abuse
• modern slavery or trafficking, or
• coercion, grooming, intimidation or exploitation.

The guidance does not exclude anyone from getting the benefit of a pre-sentence report. It does not mandate anyone to get a particular type of sentence. The guidance simply seeks to ensure that sentencers have an opportunity to understand all the potential mitigating factors that may be relevant to making a decision about sentencing people whose particular needs and circumstances have not been fully explained to the court in the past.

In the past, the lack of information has resulted in unfair outcomes with sentences compounding disadvantage. David Lammy’s 2017 pivotal report on race and disparity in the criminal justice system found differential treatment in sentencing to be 'problematic'. The report said 'analysis of sentencing data from 2015 shows that at the Crown Court, BAME defendants were more likely than White defendants to receive prison sentences for drug offences, even when factors such as past convictions are taken into account'.

The shadow justice secretary, Robert Jenrick, has stated that the new guidance undermines equality before the law. Arguably, the new guidelines seek to achieve it.

Jenrick appeared on BBC Radio Four's Today programme yesterday. Presenter Emma Barnett asked: 'Do you want to live in a country where a white man who commits violence against a person gets a shorter sentence than a black man? Because guess what, you already do'.

The shadow justice secretary was unequivocal. 'Absolutely not,' he stated, before suggesting that the new guidance 'requires' reports for people with protected characteristics before they are sentenced. This is just not correct. The wording, set out above, is 'normally necessary'.

The law is very clear that the state should not treat people differently who are in analogous situations without providing an objective and reasonable justification. It is also clear that the state must not treat differently persons whose situations are significantly different, without an objective and reasonable justification. How can a judge treat those in analogous situations similarly and those in different situations differently if he or she does not know what their situations are?

It is also not a given that having a pre-sentence report will prevent such disadvantage. A report by HM Inspectorate of probation in August 2024 found that much needs to be done to improve the quality of such reports. In particular, it found that: 'Court reports for those individuals from a Black, Asian or minority ethnicity background were less likely to be deemed sufficiently analytical and personalised, supporting the court’s decision making.'

What is really needed is a properly resourced probation service that can write reports of sufficient quality to ensure that sentences are made on a fully informed basis. It is far from clear that the new guidance will create a two-tier system. Rather, it is a positive and overdue step in improving the current two-tier system.

Dr Laura Janes is a solicitor specialising in prison law, criminal appeals, mental health law and public law