Pre-Sentence Reports for Specific Cohorts: A Move in the Right Direction?

In this article, Anna Wright discusses the recent debate on racial bias as a result of the updated guideline for the imposition of community and custodial sentences.

Overview

On 5 March 2025, the Sentencing Council published a materially revised guideline on the ‘Imposition of community and custodial sentences’. The update is due to come into effect from 1 April 2025, applying to all offenders aged 18 or over sentenced after this date, regardless of the date of the offence.

The changes were introduced after draft guidelines and a consultation paper were published in November 2023. This replaces the previous guideline and aims to provide an outline for the approach to addressing specific issues in relation to the individual which may arise when considering the suitable sentence.

The guideline addresses multiple areas including a clear focus on obtaining information on a female offenders background specifically when they are pregnant (as highlighted by Chris Henley KC in his introductory comments in a recent article on pregnancy in prison), a new section on the effectiveness of sentencing highlighting that rehabilitative sentences reduce the risk of reoffending in comparison to a short immediate custodial sentence, a new section detailing when a deferment order may be appropriate, and an increased focus in the use of pre-sentence reports (PSRs).

Emphasis on the Use of Pre-Sentence Reports

The section which has caused particular controversy is the greater emphasis placed on the use of PSRs to assess an individual’s circumstances when sentencing. The guideline makes reference to statute that when considering a community or custodial sentence the court must request and consider a PSR before forming an opinion of the sentence, unless it considers it unnecessary (section 30 Sentencing Code).

The guideline highlights a non-exhaustive list of “cohorts” where a PSR will normally be considered necessary including: if the offender is at risk of a first custodial sentence and/or a custodial sentence of two years or less; a young adult; a female; from an ethnic minority; cultural minority; and/or faith minority community; pregnant or post-natal; or a sole or primary carer for dependent relatives. A PSR may also be necessary where the offender has disclosed that they are transgender, has or may have addiction issues, has or may have a medical condition or disability, or the offender is a victim of various forms of abuse, modern slavery or trafficking, or coercion, grooming, intimidation or exploitation.

The Topic of Debate

The particular cohort of “from an ethnic minority, cultural minority, and/or faith minority community” has attracted significant attention over the past week from critics. In particular, government ministers have expressed dismay with the revised guideline. Shabana Mahmood, Justice Secretary, expressed on the social media platform, X, that she does “not stand for differential treatment before the law, for anyone of any kind”. Further, the shadow Justice Secretary, Robert Jenrick, described the cohort as a “blatant bias, particularly against Christians, and against straight white men”. Both of them referred to the changes as a “two-tiered” approach to sentencing.

In a formal letter to Lord Justice William Davis, chairman of the Sentencing Council for England and Wales, Mahmood stated that she will be “considering whether policy decisions of such import should be made by the Sentencing Council and what role ministers and parliament should play”.

In his response, Lord Justice William Davis highlighted the independence of the Sentencing Council, stating that “in criminal proceedings, where the offender is prosecuted by the state, the state should not determine the sentence. If sentencing guidelines were influenced by Ministers of the Crown, this fundamental principle would be violated.” He also made reference to the Equal Treatment Bench Book which sets out that “pre-sentence reports may be particularly important for shedding light on individuals from cultural backgrounds unfamiliar to the judge”.

This has gained attention from lawyers who have shown support for the revision to the guidelines. In the most recent edition of Criminal Law Week (25/9/17) , Sebastian Walker provided comment on Mahmood’s suggestion to legislate, stating that it would be hard to imagine that people would feel positive about a system in which Ministers and Parliament took an even more active role in sentencing.

Statistics on Racial Disparity

There has been a clear recognition that there is racial disparity in sentencing outcomes for those from ethnic groups in comparison with white offenders. The Statistics on Ethnicity and the Criminal Justice System show that white prisoners receive the shortest average custodial sentence length in comparison to other ethnic groups. Organisations such as the Prison Reform Trust have sharpened the focus on disproportionate approaches to sentencing those from minority ethnic groups.

Such discrepancies have been of ongoing recognition for a number of years. The race equality in probation report highlighted that in 2021, 27% of prisoners were ‘non-white’ in comparison with 14% of the population in England and Wales. A later follow-up report in 2023 detailed views from a senior presiding judge that those from an ethnic minority should be a priority cohort for a PSR. Evidence of such disparities is also set out in offence specific guidelines, such as the guideline for supplying or possession of a controlled drug, highlighting that for asian offenders custodial sentences have been on average longer than for white offenders. Such adversities are also recognised in youth justice, as discussed in an article by Fatima Jama.

Many of these concerns date back to MP David Lammy’s report in 2017 where he stated that more subtle scrutiny was needed of sentencing decisions, to guard against disproportionate sentencing against black, asian and minority ethnic defendants. Notably, he highlighted the importance of a PSR which is of use when considering the gap between the difference in backgrounds, both of social class and ethnicity, of the magistrates and judges and the offenders who come before them. The revised guideline enables anyone conducting a sentencing exercise to have a fairer understanding of the complexities and disadvantages faced by those from minority groups.

Independence and Impartiality

The more focused approach to PSRs in the guideline draws on research conducted independently with reference to a Ministry of Justice publication in 2023, which detailed that those who received a PSR were more likely to successfully complete their court order. As Lord Justice William Davis highlighted, both the Sentencing Council and the Judiciary are independent. The decision to make revisions to the guideline is based on an assessment of impartial research and statistics.

Aside from the clear benefits of obtaining a PSR, it is in its nature merely an informative tool, to provide the court with necessary information to assess the appropriate sentence. A PSR is written impartially thus is not always supportive of the offender. Further, the PSR will be considered alongside the prosecution’s submissions, the relevant sentencing guidelines, the evidence, and potential victim personal statements or character references.

Those conducting the sentencing exercise have a duty to adopt an independent approach and are not bound by the PSR. Such change is unlikely to largely alter the approach to sentencing given the statutory requirement that is already in place to obtain a PSR unless it is considered unnecessary.

A Move in the Right Direction?

The revision to the guideline is a welcome approach to providing those conducting the sentencing exercise with a more informed view of the offender’s background. Such changes may provide additional value to the court by ensuring a deeper understanding of the effects of custody on ethnic, cultural and faith minorities, aiming to facilitate reasoned and justifiable decisions.