Who tells the court about the person before it sentences them?

AnalysisSentencing asks questions a trial is not designed to answer. Whether a person could complete unpaid work, whether treatment would be viable, what a curfew would mean for their employment — none of that is in issue at trial, and none of it can be assumed from the offence. Someone has to find out, and it cannot be the court.

The duty is conditional but the default is to obtain one. Section 30(2) of the Sentencing Act 2020 provides that where the pre-sentence report requirements apply and the offender is aged 18 or over, the court must obtain and consider a pre-sentence report before forming the opinion, unless, in the circumstances of the case, it considers that it is unnecessary to obtain one.

For offenders under 18 the exception is narrower. Section 30(3) permits the court to proceed without a fresh report only where a previous pre-sentence report exists and the court, having had regard to the information in it or in the most recent of several, considers a new one unnecessary in the circumstances.

The statute then says who writes it. Section 31(1) defines a pre-sentence report as one 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, containing information as prescribed by rules; and section 31(2)(a) provides that for an offender aged 18 or over the appropriate officer is an officer of a provider of probation services.

The form is flexible. Section 31(4) allows the court to accept a pre-sentence report given orally in open court, subject to rules and to section 31(5), which requires a written report for an offender under 18 in specified cases including the seriousness threshold for custody.

The report is tied to the thresholds rather than free-floating. The pre-sentence report requirements apply to the court in forming its opinion on whether an offence was serious enough to warrant a community order — the same opinion in which the court must take into account all available information about the circumstances, including aggravating and mitigating factors.

• Common belief: A pre-sentence report is optional background material.

  In practice: Where the pre-sentence report requirements apply, section 30(2) requires the court to obtain and consider one unless it considers that unnecessary in the circumstances of the case — and the rule is stricter for offenders under 18.

• Common belief: The report tells the court what sentence to pass.

  In practice: It is defined as a report made with a view to assisting the court in determining the most suitable method of dealing with an offender. Assisting a determination is not making one.

• Common belief: A missing report invalidates the sentence.

  In practice: Section 30(4) provides that no custodial sentence or community sentence is invalidated by the fact that the court did not obtain and consider one. The duty exists without that consequence attached.

• Common belief: Pre-sentence reports are always written documents prepared in advance.

  In practice: Section 31(4) allows a court to accept a report given orally in open court, subject to rules; writing is required for offenders under 18 in specified cases.

• Common belief: Probation only becomes involved after the sentence.

  In practice: For an adult offender the appropriate officer who prepares the report is an officer of a provider of probation services. The involvement begins before the sentence exists.

What the statute fixes, and what it leaves open.

• Fixed: the court must obtain and consider a report where the requirements apply, unless it considers that unnecessary — s. 30(2).
• Fixed: for adults the author is an officer of a provider of probation services — s. 31(2)(a).
• Open: the form, which may be oral in open court, except where writing is required for an offender under 18 — s. 31(4)–(5).
• Open: the content, which is prescribed by rules made by the Secretary of State — s. 31(1)(b).

AnalysisA report prepared to assist the court is material about a person that will influence what happens to them, which makes its accuracy a matter of consequence. That is the argument for a defined author, a prescribed content and a form the court receives in open proceedings rather than privately.

The stricter rule for offenders under 18 is the clearest signal of what the mechanism is for. Where the person is least able to explain their own circumstances, the statute is least willing to let the court proceed without someone having established them.

• One system is described from primary text. What a report contains in practice, how it is prepared, and how courts use it were not researched and are not described.
• The equivalent function in other systems — where one exists — was not researched. Nothing here should be generalised.

Related: what a community order requires, when a court may imprison, and conviction, sentence and execution.