We need to talk about the Sentencing Council

The past few weeks have seen significant political and media attention lavished on the Sentencing Council of England and Wales, a small independent non-departmental public body which has hitherto attracted little interest from anybody outside the criminal justice system. What began as a sprinkling of misinformation on social media has snowballed into a political and legal crisis, with the government introducing primary legislation to block part of the Sentencing Council’s most recent Sentencing Guideline, the Sentencing Council postponing the controversial Guideline on the eve of its introduction, the Lord Chancellor announcing a review of the Council’s role and functions, and politicians from both main parties calling for the Council’s outright abolition.

So it is worth taking a few minutes to look at precisely what has happened, and where we go from here.

 

What is the Sentencing Council?

The Sentencing Council for England and Wales was created in April 2010, by the Coroners and Justice Act 2009. It is an independent, arms-length body, comprised currently of fourteen members – including senior judges, magistrates, legal professionals, academics, the Director of Public Prosecutions and representatives from the Probation Service, Chiefs of Police and victims’ welfare organisations. 

Its purpose, as explained on its website, is to promote greater transparency and consistency in criminal sentencing, while maintaining the independence of the judiciary. To achieve this, the Council issues Sentencing Guidelines, which courts are required to follow “unless it is in the interests of justice not to do so”. The Council is also responsible for monitoring and assessing the impact of Guidelines on sentencing practice, and promoting public awareness of sentencing. It is specifically required to consider the impact upon victims of sentencing decisions, and to promote public understanding of and confidence in criminal sentencing. 

Why do we need the Sentencing Council?

Consistency is the primary idea. Maximum (and, for some offences, minimum) sentences are fixed in law by Parliament, but there is a huge range of sentences lawfully open to a court. Burglary of a dwelling, for example, carries a maximum sentence of 14 years, with no minimum. Since the early 1980s the Court of Appeal (Criminal Division), which hears appeals against criminal convictions and sentences, has handed down judgments (“authorities”) which created a body of case law refining some of the principles of sentencing to guide sentencing judges, but these were not comprehensive and there remained variation between sentences imposed by different courts for similar offending. Since the 1990s, there have been various bodies charged with developing a more coherent framework of guidelines, and the Sentencing Council represents the most recent iteration. Sentencing Guidelines are intended to prescribe a more uniform approach to sentencing, while retaining a judge’s discretion to disapply a Guideline if the interests of justice in a particular case so require. It means, in theory, that defendants should not be receiving wildly different sentences for the same offending dependent on where in the country they are sentenced. It also makes it easier for lawyers to advise defendants on the sentence they are likely to receive. And it means that the public can better understand how sentencing works.

That’s the theory.

How are Sentencing Guidelines made?

The Council meets monthly. Representatives of the Lord Chancellor attend every meeting, meaning that the government is fully aware of the Council’s activities. The Council considers requests from the Lord Chancellor and the Court of Appeal to review or produce Guidelines for a particular offence or dealing with a particular sentencing principle. The Council also considers evidence of inconsistency or inequality in sentencing, or of sentences being passed which are considered too high or too low, or of the effectiveness of certain sentences, and can issue Guidelines accordingly. Parliament introducing a new criminal offence, or a change in the maximum sentence for an offence, may also prompt the Council to review or publish a Guideline. There is a statutory duty on the Sentencing Council to consult the Lord Chancellor and the Justice Select Committee when developing Guidelines, and standard procedure is for the Council to publish a draft guideline for public consultation, and to invite comment and suggestions from the public, politicians and any other interested groups or individuals. Anybody can contribute. Following the consultation, the draft guideline is revised, and the full Guideline is then published. Before it is published, officials from the Ministry of Justice are walked through the final Guideline, with any amendments pointed out, so nobody in government is taken by surprise. The Guideline is then published alongside a consultation response, setting out the Council’s working and summarising the evidence received and considered during the consultation. 

How do Sentencing Guidelines operate?

Some Guidelines are offence-specific – for example, we have Guidelines for sexual offences, assault, drugs, public disorder, robbery, burglary, fraud, firearms and weapons – the list goes on. These tend to operate by way of a matrix: by plugging the facts of a particular offence into the Guideline, and identifying listed features of “harm” and “culpability”, an offence will fall into a category, which provides a category ‘starting point’ and a category ‘range’. 

Other Guidelines set down overarching principles for a court to apply – for instance, reduction in sentence for a guilty plea, or principles in cases involving domestic abuse, or the principles to apply when deciding whether to impose a custodial sentence or an alternative. 

What influence do the Sentencing Guidelines have?

Judges are first and foremost bound by the law, as made by Parliament and the higher courts. And although the law says that judges have to follow Sentencing Guidelines, a relevant Guideline does not have to be followed if it would not be in the “interests of justice” to do so. Which gives judges a fair bit of latitude. 

The Guidelines therefore give a framework, but there is some room for manoeuvre. Judges are still bound by minimum and maximum sentences, and are still required by law to have regard to the statutory purposes of criminal sentencing (which, for adults, are punishment of offenders; reduction of crime (including by deterrence); reform and rehabilitation; public protection; and making reparations to victims). Practitioners will also tell you that, in many sentencing exercises, there is at least a suspicion that judges are working backwards, identifying the sentence they wish to impose, and then retroactively justifying it by reference to the Guidelines (or, by reference to the interests of justice the judge has identified that justify ignoring the Guideline).

Ultimately, the backstop against rogue sentences – either too high or too low – is the Court of Appeal, which can reduce sentences which are manifestly excessive or wrong in law, and can increase sentences which are unduly lenient.

Do Sentencing Guidelines work?

It depends on your definition. They certainly reduce (although will never eliminate) inconsistency. And they make the lives of criminal lawyers easier, as we can predict with greater certainty what type or length of sentence a defendant is likely to receive. But as for whether they are configured in a way that promotes public confidence, that is a different question. Readers of my books know that I am frequently critical of the Guidelines for what, to me, appear to be unjustifiable discrepancies between the lengths of sentences set for certain non-violent offences – such as drug supply and fraud – compared to sentences for serious physical or sexual violence. Part of this (again, at the risk of regurgitating previous arguments) is because the sentence starting points and ranges are anchored around decisions of Parliament and the Court of Appeal stretching back centuries, over which society has placed a greater premium on property offences than offences against the person. Especially when that person is female. I have also been critical of the way in which, to my mind, the seriousness of burglary is vastly underestimated by the criminal justice system as a whole, an underestimation which I would say is borne out in Guidelines providing a starting point of only 3 years for the most serious category of burglary, when the maximum sentence is 14 years.

I could go on. But, criticism of the substance aside, it is probably fair to say that the guiding principle behind Guidelines – greater consistency and clarity – is generally achieved. It is certainly preferable to the pre-Guideline position, when a member of the public wanting to understand what sort of sentence might be passed for a criminal offence would require access to a law library and the patience to read hundreds of pages of Court of Appeal judgments.

Who is the Sentencing Council accountable to?

Judicial appointments to the Council are made by the Lady Chief Justice (who is also the President of the Council) and approved by the Lord Chancellor. Non-judicial appointments are made by the Lord Chancellor and approved by the Lady Chief Justice.

The Council is accountable to Parliament for delivering its statutory obligations. For accounting purposes, the Council is accountable to the Permanent Secretary at the Ministry of Justice. The Council has a statutory requirement to consult with Parliament, and members of the Council appear before the Justice Select Committee.

A crucial part of governance is that ministers have a responsibility to protect the Council’s independence. Parliament sets minimum and maximum sentences, but politicians have no role to play in the sentencing process. That is a judicial function, and the separation of powers – a central pillar of the rule of law – requires that there be clear blue water between politicians and criminal sentencing.

So why the recent controversy?

In 2017, the Sentencing Council published a Guideline on the Imposition of Community and Custodial Sentences (“the Imposition Guideline”). This offered guidance to courts on the principles to apply when a court was considering whether to impose a community order, a suspended sentence or immediate custody. It was therefore mainly of use in cases of moderate seriousness, where an offender was convicted of an offence which was likely to attract a sentence of two years or less, as any sentence of two years or less can be suspended. It was a relatively short Guideline, which, among other uncontroversial matters, included brief guidance on the obtaining of Pre-Sentence Reports. 

A Pre-Sentence Report is a report prepared by the Probation Service, following conviction and prior to sentence. It is based on an interview with the offender and a review of other materials available to Probation (police records, Social Services reports, medical documentation etc), and is designed to provide the court with information that may assist at sentence. It usually details the offender’s background, personal circumstances, education, work history, medical history (including mental ill health), alcohol and drug (mis)use, offending history, family and caring responsibilities, any particular consequences of imprisonment, and any other information about the offender which a judge may need to know before passing sentence. There is also offence-specific information: an analysis of why the offence was committed (as far as it is possible to assess such things), and, crucially, assessments of risk, including the likelihood of reoffending and an assessment of whether the offender presents a significant risk of causing serious harm to the public. The report will also contain a proposal as to how a court could deal with the offender. If it is a case where there is a chance that offender will not be sent to prison, Probation will indicate what sort of programmes or punitive requirements could be offered under a community order or a suspended sentence.

PSRs are useful for the court, therefore, and potentially helpful to defendants. A good PSR, with a positive recommendation from Probation, can be of very real assistance in persuading a judge that they can give a defendant a chance on a suspended sentence. However, as any defence lawyer will tell you, a good PSR is no guarantee. Frequently a defendant will not make the best impression on the Probation Officer interviewing them. They will deny the offence they have been convicted of (and, more commonly than you’d believe, deny the offence they have pleaded guilty to). They will make threats of revenge against the victim. They will show no insight into their offending, and no remorse. And Probation will conclude that the offender represents quite a big risk indeed, and is not somebody whose risk can be managed in the community. Even somebody whose risk is so severe that additional protection is required.

By law, a court must obtain a Pre-Sentence Report before “forming a relevant opinion” – i.e. before deciding whether to imprison somebody, make them subject to a community order, or find them “dangerous” (and so eligible for special types of sentence). The exception (because there always is one) is where a court considers it “unnecessary” to do so. So, for instance, where a defendant facing sentence is “time served” – has already served on remand the length of sentence that a judge would have imposed – there is often no need for a PSR. The defendant just wants to be given his sentence so that he can be immediately released.

Back to the 2017 Imposition Guideline. It contained the following uncontroversial pointer: 

Pre-sentence report

Whenever the court reaches the provisional view that:

• the custody threshold has been passed; and, if so

• the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

Fastforward then to July 2022, when the Council held its first of fifteen meetings at which updates to the 2017 Imposition Guideline were discussed (and at which government representatives were present). At a further meeting in October 2022, the question of Pre-Sentence Reports, and what to say about them, was discussed. It was agreed that, alongside a reminder of the duty to request PSRs, the new Guideline should include lists of “cohorts” for whom PSRs may be particularly important. The subject of “cohorts” was discussed at a number of meetings, and the final list suggested was as follows:

 

with the qualification that this “is a non-exhaustive list and a PSR can still be necessary if the individual does not fall into one of these cohorts”. 

A draft Guideline, including these cohorts, was put out for consultation. 

What happened next was instructive.

• The government (at the time, Rishi Sunak’s Conservatives) expressed no disagreement, instead writing to the Council in February 2024 praising “the fuller guidance around the circumstances in which courts should consider a pre-sentence report“. 
• The official opposition – including shadow Lord Chancellor Shabana Mahmood – expressed no disagreement.
• The House of Commons Justice Committee did not express any disagreement.
• The media did report on the consultation guideline and the subject of cohorts – but only in relation to the inclusion of female offenders on the list.
• Of the 150 responses received to the consultation guideline (of which only four were MPs), eight (four magistrates, four members of the public) objected to the inclusion of the cohort “from an ethnic minority, cultural minority and/or faith minority community”. But the other 142 did not, and, given the active support of the Lord Chancellor and Justice Committee, the Sentencing Council retained the list of cohorts in the final Guideline.
• On 3 March 2025, the Council gave a “walk through” to (now-Lord Chancellor) Shabana Mahmood’s ministerial representatives, prior to official publication of the final Guideline. No concerns were expressed.
• On 5 March 2025, the new Imposition Guideline was published.

And then it all hit the fan.

How did it all hit the fan?

Objection was taken, by Shadow Lord Chancellor Robert Jenrick, to the inclusion of the cohort “from an ethnic minority, cultural minority and/or faith minority community”. He suggested – evoking terms adopted by the far-right during the racist public disorder last summer – that the inclusion of this cohort in a list of presumptive recipients of PSRs amounted to “two-tier justice”, in which the system would be “biased against white men and Christians” and “prison sentences will be less likely for ‘ethnic minorities’ and ‘faith minority’ communities”. In an admirably audacious act of dishonesty, he even attributed the Guideline to “two-tier Keir [Starmer]”, despite the fact that it was Jenrick’s own party in government which had praised and approved that part of the guideline. And as a logical conclusion to his false premise, Mr Jenrick succeeded in persuading The Times, among other outlets, to uncritically repeat that the Guideline calls for “softer sentences for minorities“. 

The government’s response, rather than correcting Mr Jenrick’s blatant untruths, was to accept his premise and criticise the Sentencing Council, which, as published correspondence demonstrates, declared itself a little surprised given that only a week earlier Shabana Mahmood’s representatives had been walked through the Guideline without demur. Agreeing that the new Guideline was “two-tier”, Lord Chancellor Shabana Mahmood embarked upon an astonishing stand-off with the Sentencing Council, exchanging fiery letters in an effort to force the Council into amending the Guideline to remove all cohorts – a bizarre reaction given that no criticism had been raised of any of the other cohorts. When this failed, she threatened to legislate to override the inclusion of the ethnic/cultural/faith minority cohort, an unprecedented move by a government minister which had the inevitable effect of compelling the Council to suspend the Guideline. A review has been announced of the future of the Sentencing Council, with Robert Jenrick now calling for the Chair, Lord Justice William Davis, to be “sacked”.

Is there any substance to the complaint?

Little that has been said by Robert Jenrick is grounded in reality. This is perhaps not surprising given that his recent comments on social media about various aspects of the criminal justice system suggest that he has no understanding at all of how it works, and no desire to educate himself. That he deliberately apes the language of the far-right, and seeks to attack individual judges in defiance of the constitutional responsibility of a Lord Chancellor, means that this is not a man who takes his role seriously. This, for Mr Jenrick, appears to be about fortifying his position with people of a certain worldview in anticipation of a second leadership bid. The fairness of the justice system is not, given his record, of anywhere near as much concern as his own personal advancement. 

However, that is not to say that there are not valid criticisms to be made of the Guideline. 

 In correspondence with the Lord Chancellor, Lord Justice William Davis, Chair of the Sentencing Council, has set out why the offending cohort was included.

In a further letter, the following observation was also made:

In short, the position of the Sentencing Council appears to be: there is evidence of a disparity in sentence outcomes between white offenders and ethnic minority offenders. Given that judges are not, as a class, particularly representative of society’s ethnic composition, and given evidence from HMPPS Probation that detailed reports are of particular importance in these cases, judges may benefit from further information in relation to ethnic minority offenders, which may (or may not) go some way to addressing the disparity in outcomes. All that PSRs do, at the end of the day, is provide information. This might be helpful to an offender, it might not. But the provision of information is not, of itself, preferential treatment, much less a precursor to preferential sentencing.

But, with respect to the Council, there are some holes in that position. For one, while the Council properly criticises the elision of the obtaining of PSRs and non-custodial sentences, and while it is right that a PSR does not determine the sentence outcome, the Guideline itself states that “a pre-sentence report can be pivotal in helping the court decide whether to impose a custodial or community order”. So they clearly matter. And as this piece by Stephen Bush in the FT argues, if PSRs lead to better-informed sentencing decisions, then any suggestion that they should be made more or less available depending on ethnicity, culture or religion risks appearing corrosive and unfair. 

The Sentencing Council’s rejoinder to that, based on its letter of 26 March 2025, would presumably be that the list of cohorts is non-exhaustive, and that none of the other listed cohorts contains any reference to ethnicity, culture or faith. Therefore no white offender who needs a PSR will be deprived of one. Moreover, PSRs are not mandatory for any of the cohorts – if a report is not considered necessary, the court does not need to seek one. Robert Jenrick’s notional white Christian defendant, if he is facing a sentence of 2 years or less (which means it can be suspended), or if they are a young adult, or a primary carer, or pregnant, or fall outside the cohorts but still require a PSR – a PSR they shall have. A minority defendant who does not need a PSR – they shall not have it. Ultimately, everybody who needs a report will have one, and nobody is going to be sentenced any more or less leniently than they deserve. 

But this, to me, exposes the hollowness of this whole fiasco. Nobody I have spoken to in practice believes that the inclusion of the “ethnic/cultural/faith minority” cohort is going to make the slightest difference to a single sentencing exercise. It is certainly not going to have any impact at all on the white defendants who make up the vast majority of the clientele at the Crown Courts. They will have the benefit (if it can be characterised thus) of a PSR if they fall within the other listed cohorts, and, sometimes, even if they don’t. Minority defendants are, in practice, going to need to fall within the same “other” cohorts in order for a court not to deem a PSR unnecessary. If a court feels it is in possession of all the information it needs about a minority defendant, and does not have a suspended sentence or a dangerousness assessment in mind, it will not obtain a PSR. At its absolute height, the effect of the Guideline, if implemented, might be that a tiny handful of defendants from an ethnic/cultural/faith minority who would not otherwise have received a PSR will have one. But the effect on their sentences – let alone overall sentence outcomes – will be negligible, if not non-existent. Even the consultation response published alongside the Guideline, which addresses head-on the inclusion of a ethnic/cultural/faith minority cohort, speaks in terms of vague hope rather than calculated expectation, speculating that the inclusion of this cohort “may be able to contribute to addressing this observed imbalance [in sentencing outcomes]”. 

In practical terms therefore, nothing is likely to change. And so, on the one hand, there is a strong argument that the Council did not need to include this cohort. That to do so was unnecessary, unsupported by sufficiently rigorous evidence and demonstrated a degree of political naivety (albeit mitigated by the fact that, back in the innocent days of early 2024, the culture wars had not yet reached the current state of freneticism and hyperparanoia, and the Council was no doubt encouraged by the government’s enthusiastic support for the PSR cohorts).

But this is also what makes the government’s wild overreaction so inexplicable. The Lord Chancellor did not need to accept her Shadow’s invitation to smear on the face paint and join the culture war. She could have simply ignored Robert Jenrick’s tiresome social media feed. Instead of claiming, ridiculously, that she had not had meaningful input into these Guidelines – when her own officials attended every meeting and implicitly endorsed them only two days before publication – she could have stood by the Sentencing Council. She could have pointed out that it was Mr Jenrick’s government – and the Conservative-chaired Justice Select Committee – that originally approved these Guidelines; that Mr Jenrick himself had not bothered to take part in the consultation to raise any concerns; and that she was not going to interfere at the eleventh hour with an independent process which had already been approved by Mr Jenrick’s own colleagues, and which in any event would not result in the “softer sentences for minorities” that he was falsely claiming. She could have called him out for spreading misinformation and fomenting racial tension by regurgitating far-right talking points. She could have reminded him that as Shadow Lord Chancellor his duty is not to his followers on X, but to defend judicial independence. She could have said, loudly and clearly, that calling for judges to be sacked for making independent decisions in accordance with their statutory duties is not how anybody in public office (this side of the Atlantic) should act. She could have – should have – called for Mr Jenrick’s resignation for disgracing his office, referring his false statements in the House of Commons to the Speaker, and challenging the Leader of the Opposition to defend the rule of law. 

But the Lord Chancellor did not.

And now, while the criminal justice system is in flames – record, growing court backlogs; record delays; trials unable to go ahead for a lack of judges and barristers; crumbling court buildings; overflowing prisons; chronic understaffing – the Lord Chancellor has backed herself into a pointless, idiotic fight in which she may ultimately be forced to dismantle the one part of the system which was quietly and effectively getting on with its job.