Are pre-sentence reports part of the judicial sentencing process? Or are they a question of policy for ministers and ultimately for parliament? That is the question that has divided the judiciary and the executive over the past couple of weeks, upsetting the delicate balance between the major institutions of the state.
In the US, where there is a strict separation of powers, we can see growing tensions between the president, the courts and, potentially, Congress. In the UK, we expect the executive, the judiciary and the legislature to work collaboratively while respecting each other’s independence.
The Sentencing Council, a statutory body with a majority of judicial members, decided last year to update and expand an earlier guideline on the imposition of community and custodial sentences. This tells courts to request a pre-sentence report whenever they take the provisional view that a community order may be appropriate – unless they think a report is not needed.
A new guideline was drafted and circulated for consultation. It listed 10 ‘cohorts’, or groups, for whose members a pre-sentence report would normally be considered necessary. That was one of the sections that drew the largest number of comments.
The effect on the constitutional balance turns out to have been closer to a wobble than an earthquake
‘There were strong opinions from all sides about this section,’ the council noted, ‘and many individual respondents, including some magistrates, did not believe there should be a cohort list at all, mostly citing reasoning around the idea that the list is biased and conflicts with equality in sentencing.’
That argument was rejected. On ethnicity, there was evidence that the proportion of black offenders receiving a community order was lower than for white offenders. The council thought the revised guideline ‘may be able to contribute to addressing this observed imbalance’ by emphasising that courts should request a pre-sentence report for offenders from an ethnic minority background so that they had sufficient information about the offence and the offender.
A direct link between pre-sentence reports and non-custodial sentences has never been claimed by the Sentencing Council. If a probation officer concludes that an offender does not accept the damage caused to a victim, the court may decide that culpability and risk factors justify imprisonment.
But the justice secretary insisted on Tuesday that a pre-sentence report on someone from an ethnic, cultural or faith minority was ‘more likely to discourage a judge from sending an offender to jail’. It was this, Shabana Mahmood told MPs, ‘that creates the perception of differential treatment before the law and risks undermining public confidence in the justice system’.
Not so, the chair of the Sentencing Council told Mahmood last week. Sir William Davis insisted that a pre-sentence report does not decide a sentence. ‘Rather, it will leave the judge or magistrate better informed about the offender.’
The message behind the new guideline is a simple one: don’t send offenders to prison unless you really have to. Confirming that reading, Davis reminded me that a similar message was to be found in section 230 of the Sentencing Act.
That being so, it was not unreasonable for Mahmood to infer that the cohorts had been added to the revised guideline to let those included demonstrate that a non-custodial sentence amounted to sufficient punishment. If that is the case, argues the justice secretary, then the question of who should be included in the cohorts is a matter of policy.
Again, the Sentencing Council disagrees. ‘The cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed,’ it told Mahmood. ‘In our view, providing the sentencing court with information about that cohort could not impinge on whatever policy might be introduced to deal with the underlying problem.’
Fortunately, a measure of compromise was reached. On 20 March, Mahmood asked for the full list of cohorts to be removed. Davis responded by pointing to cases where sole carers of young children and pregnant offenders had been imprisoned without pre-sentence reports, only to have their sentences reduced by the Court of Appeal.
Mahmood’s bill, published on Tuesday, would ban guidelines about pre-sentence reports ‘framed by reference to different personal characteristics of an offender’. But the Sentencing Council will still be able to issue guidelines advising courts to consider an offender’s personal circumstances. And Mahmood confirmed that courts could continue to request pre-sentence reports for groups such as young offenders and pregnant women.
Having demonstrated its independence by turning down a request for reconsideration from a minister, the council properly suspended implementation of its guideline while parliament considered legislation.
The government and the judges are still in dispute over whether this is a matter of policy. And there is disagreement on the left over whether the suspended guidelines could have helped tackle sentencing disparities. But the effect on the constitutional balance turns out to have been closer to a wobble than an earthquake.
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