Sentencing Council controversy: Introduction of a two-tier regime?

Updated guidelines, coming into force on 1 April 2025, have been published by the Sentencing Council. These provide guidance to the criminal courts on the imposition of community and custodial sentences, including the circumstances in which a court should obtain a pre-sentence report (‘PSR’). Whilst arguably uncontroversial, certainly to those working within the criminal justice system, the new guidelines have attracted somewhat of a media storm – including calls to judicially review the Sentencing Council, and for the Government to legislate to overturn this guidance.

The cause of this controversy appears to be the perception that the guidance gives preferential treatment (the obtaining of a PSR and, ultimately, in the sentences passed) to certain groups of people. 

A PSR is a report which is considered by the court before sentencing an individual. It is compiled by the Probation Service, following an interview with the defendant, and it contains an assessment of the factors that may have contributed to the offending behaviour and what, if any, risk is posed in the future. The purpose of a PSR is to provide the court with a greater understanding of the background and context of the offending behaviour and, in turn, help to inform the appropriate sentence to be passed.

The Sentencing Act 2020 requires that a PSR must be ordered for all offenders over 18, unless the court thinks it unnecessary – which provides significant room for discretion. This is supplemented by the existing Sentencing Council’s guideline, which suggests that (again, unless considered unnecessary) a pre-sentence report should be obtained if the court is considering either a community or custodial based sentence. 

The new guidelines mirror the principles above, but with the addition of specific examples as to when a pre-sentence report should ‘normally’ be considered, with reference to particular groups of people falling to be sentenced.

The addition of guidance as to when a PSR should ordinarily be considered under the new guidelines, applies if an offender belongs to one (or more) of certain cohorts, the list of which includes: being at risk of a first custodial sentence or a custodial sentence of 2 years or less, a young adult (typically aged between 18-25), female, from an ethnic, cultural and/or faith minority community, pregnant/post-natal or a primary carer for dependents. In addition, a PSR should normally be considered if the offender has disclosed that they are transgender, has or may have addiction issues, has a serious chronic medical condition or disability, or if the court considers a risk that they have been the victim of domestic, physical sexual abuse or other forms of exploitation.

It is anticipated that most criminal practitioners will view that a proportion of the above list covers cases which, in practice, may naturally attract a PSR being requested by the defence and/or ordered by the court.

The guidelines have, however, caused controversy, with a significant and public backlash. This has included threats to introduce new legislation to overrule the Sentencing Council. Critics have described them as introducing a ‘two-tier’ justice system, with the Justice Secretary, Shabana Mahmood, stating that whilst PSRs can be instrumental in assisting the courts in the determination of their sentence, ‘access to one should not be determined by an offender’s ethnicity, culture or religion’. 

Indeed, it seems that the inclusion of this particular cohort (i.e. being part of an ethical, cultural and/or faith minority) has dominated much of the reported criticism, despite it being just one of a number of examples provided as to when a PSR will normally be considered. As with all of the groups on the list, its placing is not random, and its particular inclusion is underpinned by repeated findings of considerable disparities in how ethnic minorities are treated within the criminal justice system, such that additional information by way of a PSR may be of assistance to the sentencing court.

In response to the furore, the Sentencing Council issued a statement confirming that PSRs are to ensure that courts have the most comprehensive information and can pass the most appropriate sentence, not to indicate sentence.

Much of the controversy appears to be based on a misunderstanding that this guidance will automatically mean a lesser sentence for those defendants being sentenced with the benefit of a PSR such that, in turn, individuals who fall into one or more category of the listed cohorts will inevitably receive lower sentences than their counterparts who do not receive a PSR. This is a headline-grabbing misconception, and it is important to note that a number of important pieces of information appear to have been lost in the midst of this spit and fury. 

Firstly, a PSR is not binding on the court and provides only recommendations by the Probation Service. The reports are informative in nature and not an indication of sentence. PSRs are also impartial and, in some cases, may not be supportive of the offender. The report will be considered as part of the overall sentencing exercise and does not in and of itself lead to a lesser sentence being passed.

Secondly, the guidelines do not alter the current legislative position with respect to PSRs, nor do they fetter the wide discretion of courts in ordering one. The inclusion of certain groups as likely necessitating a PSR is (as per the Sentencing Council’s statement) to address disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in circumstances of individual offenders that can only be understood through an assessment. Their inclusion does not negate the overriding obligation on courts to order a PSR if the circumstances of a case deem it necessary.

In order to achieve the five purposes of sentencing (punishment, the reduction of crime, rehabilitation, protection of the public, and restoration), it is difficult to see how a better understanding of those being sentenced will not be of benefit. The greater emphasis on PSRs being sought in respect to the groups listed in the revised guideline simply allows anyone conducting the sentencing exercise to better understand the complexities that may be faced by these minority groups, which may currently be overlooked or underappreciated.

In order to achieve sentences which are well founded and based on relevant, complete information, it is difficult to see how this guidance is not a step in the right direction.