Sentencing at a Crossroads: Will the Sentencing Guidelines (Pre-sentence Reports) Act 2025 Ease or Worsen the Prison Crisis?

Introduction

In an attempt to deescalate the prison crisis, the UK government introduced the Sentencing Guidelines (Pre-sentence Reports) Act 2025 and received Royal Assent in June 2025 [1]. The Act attempts to uphold and ensure both proportionality and transparency in sentencing by setting new guidelines which were drafted in response to a growing crisis, a demanding period when the UK prison system was said to be on the brink of collapse. Will this new piece of legislation address or further worsen the crisis of over-incarceration?  

This article will evaluate the structural changes to the law relating to sentencing brought by the statute, their impact on modern penal policy and their interaction with the judicial prerogative. It will examine whether the Act will bring ease and rationalise the sentencing process or is a political overreaction, described by Lord Burnett to be “at the first whiff of political grapeshot”  and thus further risk disrupting a system that was already under pressure [2].

The Act: Structure and and Implications

The small margin of the legislation, enacted by Parliament, does not diminish its effects in relation to the current sentencing law. By inserting subsection (4A) as part of the amendment of the Coroners and Justice Act 2009, it directly disallows the framing brought by the Sentencing Council in relation to the pre-sentencing reports by reference to the personal characteristics of an offender, which includes their religion, race, belief or cultural background [3]. Whilst what was described to be an “emergency legislation” by Lord Marks of Henley-on-Thames may be concise, its implication with that respect is profound in the applicability of the sentencing guidelines [4].  

The Act seeks to clarify the extensiveness of “personal characteristics” set out in accordance with section 1(12), while also establishing that the “pre-sentence report” is to be in respect with, and must obtain the same meaning as that under section 31 of the Sentencing Code (SC), as per Sentencing Act 2020 [5]. The definition set out by section 31 of the SC that “pre-sentence report”, as per s31(1)(a), means “a report which is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender”, and s31(1)(b) “contains information as to such matters, presenting in such matter as may be prescribed by rules made by the Secretary of State” [6].  

As far as the intentions of Parliament is concerned, there was a say in the removal of any potential bias or cases whereby dissimilar treatments were prominent in drafting guidelines which may arise from the personal characteristics of offenders, as Lord Timpson, Minister of State for Prisons, Parole and Probation stated, “the sentencing guidelines do not lead to differential treatment before the law” [7]. 

Sentencing Omission and Miscarriages of Justice

Having established the key legislative aspects of the Act, let us turn to Lord Hewart, in Rex v Sussex Justices, ex parte McCarthy [1924] 1KB 256, [1923] AII ER Rep 233, who laid the aphorism that “justice must not only be done, but must also be seen to be done” [8]. However, this dictum raised quite a prominent question regarding the issue of sentencing omissions, does leaving out personal characteristics make the system fairer, or does it provoke miscarriages of justice and hide inequalities under the persona of neutrality? The government has defended this change, with the Lord Chancellor and Justice Secretary Shabana Mahmood emphasising the need for such a reform by boldly claiming that “this Sentencing Bill will ensure that our prisons never run out of space again, we can always lock up dangerous offenders, and that punishment cuts crime rather than creating better criminals”, in trying to restore public confidence in our sentencing system [9].  

In contrast, the Howard League for Penal Reform suggests that the Coroners and Justice Act 2009 have retained the ideals of Lord Carter’s original recommendation of the Sentencing Council [10] when creating and reviewing guidelines to be in respect to section 120(11)(b), which is to ‘promote consistency in sentencing’, and section 120(11)(e) which places a regard to the ‘cost of different sentences and their relative effectiveness in preventing re-offending' [11]. However, the League expresses the concern that the Sentencing Council has not curbed the use of imprisonment by the courts and regard for the cost and effectiveness of different sentences, and therefore opposes the view of the Lord Chancellor that the Sentencing Council has instead focused on ensuring that ‘its guidelines reflect, and thereby institutionalise for good or ill, current sentencing approaches’ [12]. Therefore, by misallocating their focus on trying to institutionalise current sentencing guidelines rather than tackling the issues surrounding the prison system, it risks producing an overly fragile system which is already at the brink of collapse. 

Role of Pre-Sentence Reports

Moreover, what provides the courts with a structured and detailed assessment of an offender’s background, circumstances, rehabilitation prospects, are the pre-sentence reports (PSRs) which are imperative to judicial prerogatives. Section 152(2) of the Criminal Justice Act 2003 which states that “the court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence” [13].

This establishes a principle that requires sentencing verdicts are informed by sufficient understanding in accordance and with respect to the offender's background. Therefore, the newly established Sentencing Guidelines Act 2025, by consequence, may in actuality cause an indirect shift in how PSRs are used in practice, and as a result, cause information to courts who rely upon to apply section 152(2) to be limited due to the restriction of guideline configuration. The Sentencing Council, in its publication, Amendments to be made to sentencing guidelines as a result of the incoming Sentencing Guidelines (Pre-sentence Reports) Act 2025, does acknowledge that any necessary change in accordance with the established precedents, would require the removal of any direct reference to offenders background and circumstances within the guidance documents [14]. 

According to the Justice Committee’s examination of future prison population and estate capacity, the population is currently projected to increase to 94,400 by March 2025 and a range of 93,100-106,300 by March 2027, meaning an increase of approximately 11,900 prisoners in this scenario [15]. Changes in the prison population are expected as the result of a range of policies, including those in effect but not yet fully represented in the population and others expected to commerce over the projection board. In addition to the impacts resulting from increased police officer numbers, other estimated impacts factored into the projections include [16]: 

• the Police, Crime, Sentencing and Courts Act 2022, which includes provisions for charging the automatic release point for violent and sexual offenders sentences to a standard determinate of 4-7 years [17];

• the Release of Prisoners Order 2020, which increases custodial sentences for offenders convicted of a relevant or sexual offence with a custodial sentence of 7 years or more [18];

• the Domestic Abuse Act 2021, which extends extraterritorial jurisdiction over specified offences [19];

• the Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023 [20];

• the Criminal Justice Act 2003 (Home Detention Curfew) Order 2023 as an amendment to section 246 of the Act [21];

Sir Bob Neill, Chair of the Justice Committee, stated that “[t]he prison population in England and Wales is rising and is forecast to increase even further. The temporary use of police cells serves to highlight the pressing need for the Government to urgently address prison capacity” [22]. Both the projection and the illicit concerns made by the Justice Committee signify that this newly established legislation must seek to address prison capacity as a by-product of sentencing.

A prominent concern is that of the justification of sentencing—if the removal of personal characteristics makes the overall result of the sentencing guidelines limited to pre-sentence reports, then the likelihood of courts to impose custodial sentences is slim whereas community orders might otherwise have been justified. This is a direct consequence of what may lead to an intensification of the very overcrowding crisis Parliament seeks to resolve.  

R v. Rogers [2007] UKHL 8 highlights the congruency between judicial discretion and the newly established 2025 Act. Before appeal, the Court of Appeal had emphasised that sentencing must not be reduced to a systemic process rather in accordance with judicial verdicts with respect to established precedents [23]. R v MacDowall [2024] EWCA Crim 294 placed a strong illustration on the importance of pre-sentence reports as the Court of Appeal elucidated that they are essential for assessing dangerousness and to uphold the principles in sentencing [24]. Therefore, any measure that indirectly restricts any information regarding the offender to be presented and considered may threaten the very principles of fairness and transparency.  

Conclusion

In conclusion, the effects of the Sentencing Guidelines (Pre-sentence Reports) Act 2025 are imminent within sentencing law. It may seem to be an attempt to address the prison crisis and to uphold transparency, however, the threat to rehabilitative justice and judicial discretion, may cause the Sentencing Council to impede its principles.

It remains difficult to determine empirically whether the Act will ease or worsen the prison crisis. However, there is a real risk that its move toward more uniform sentencing, rather than contextual decision-making, could accelerate overcrowding. Ultimately, the key test is whether the reform can uphold fairness while still allowing judges to recognise human differences in delivering justice.

References

[1] UK Parliament, ‘Sentencing Guidelines (Pre-sentence Reports) Act 2025: Royal Assent’ (Parliamentary Bills, 19 June 2025).

[2] HL Deb 19 June 2025, vol 847, col 412 (Lord Burnett of Maldon).

[3] Sentencing Guidelines (Pre-sentence Reports) Act 2025 (c 17).

[4] HL Deb 14 March 2025, vol 846, col 232 (Lord Marks of Henley-on-Thames).

[5] Sentencing Act 2020, s 31.

[6] Sentencing Act 2020, ss 31(1)(a), 31(1)(b).

[7] HC Deb 21 May 2025, vol 812, col 167 (Lord Timpson, Ministry of State, Ministry of Justice).

[8] R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, [1923] All ER Rep 233 (KB).

[9] Shabana Mahmood, ‘Tens of Thousands More to Be Tagged under Biggest Ever Expansion’ (Ministry of Justice, 2025) <GOV.UK>.

[10] Howard League for Penal Reform, Response to the Sentencing Council’s Consultation: What Next for the Sentencing Council? (2023).

[11] Coroners and Justice Act 2009, ss 120(11)(b), 120(11)(e).

[12] Howard League for Penal Reform, Response to the Sentencing Council’s Consultation: What Next for the Sentencing Council? (2023).

[13] Criminal Justice Act 2003, s 152(2).

[14] Sentencing Council, Amendments to Be Made to Sentencing Guidelines as a Result of the Incoming Sentencing Guidelines (Pre-Sentence Reports) Act 2025 (2025).

[15] Justice Committee, Justice Committee to Examine the Future Prison Population and Estate Capacity (UK Parliament Committees, 2024).

[16] Ministry of Justice, Prison Population Projections: 2023 to 2028 (2023).

[17] Police, Crime, Sentencing and Courts Act 2022.

[18] Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020.

[19] Domestic Abuse Act 2021.

[20] Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023.

[21] Criminal Justice Act 2003 (Home Detention Curfew) Order 2023, amending Criminal Justice Act 2003, s 246.

[22] Justice Committee, Justice Committee to Examine the Future Prison Population and Estate Capacity (UK Parliament Committees, 2024) (quotation of Sir Bob Neill).

[23] R v Rogers [2007] UKHL 8, [2007] 2 AC 62 (HL).

[24] R v MacDowall [2024] EWCA Crim 294.

Bibliography

Legislation

Sentencing Guidelines (Pre-Sentence Reports) Act 2025 (c 17) ss 1(12), 4A.
Coroners and Justice Act 2009, ss 120(11)(b), 120(11)(e).
Sentencing Act 2020, ss 31(1)(a), 31(1)(b).
Criminal Justice Act 2003, ss 152(2), 246.
Police, Crime, Sentencing and Courts Act 2022.
Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020.
Domestic Abuse Act 2021.
Criminal Justice Act 2003 (Removal of Prisoners for Deportation) Order 2023.
Criminal Justice Act 2003 (Home Detention Curfew) Order 2023.

Cases

R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, [1923] All ER Rep 233 (KB)
R v Rogers [2007] UKHL 8, [2007] 2 AC 62 (HL)
R v MacDowall [2024] EWCA Crim 294

Parliamentary and Government Material

HL Deb 14 March 2025, vol 846, col 232 (Lord Marks of Henley-on-Thames)
HL Deb 19 June 2025, vol 847, col 412 (Lord Burnett of Maldon)
HC Deb 21 May 2025, vol 812, col 167 (Lord Timpson).
UK Parliament, ‘Sentencing Guidelines (Pre-Sentence Reports) Bill: Royal Assent’ (19 June 2025).
Shabana Mahmood, ‘Tens of Thousands More to Be Tagged under Biggest Ever Expansion’ (Ministry of Justice, 2025).
Justice Committee, Justice Committee to Examine the Future Prison Population and Estate Capacity (UK Parliament Committees, 2024).
Ministry of Justice, Prison Population Projections: 2023 to 2028 (2023).

Secondary Sources

Howard League for Penal Reform, Response to the Sentencing Council’s Consultation: What Next for the Sentencing Council? (2023).
Sentencing Council, Amendments to Be Made to Sentencing Guidelines as a Result of the Incoming Sentencing Guidelines (Pre-Sentence Reports) Act 2025 (2025).
Sentencing Academy, Custodial Sentences: Section 152(2) Criminal Justice Act 2003 (2024).
R v MacDowall [2024] EWCA Crim 294 (CaseMine database entry).