Fewer PSRs = less community sentences?
An intriguing new (18 July 2018) briefing from the Centre for Justice Innovation examines the rapid decline in the use of pre-sentence reports and its relationship to the 24% drop in the number of community orders made in the last decade (see my blog post on the Crest Advisory authoritative report on this phenomenon).
The briefing, entitled The changing use of pre-sentence reports, presents emerging findings from the CJI’s analysis of national data on the use of PSRs.
What is a pre-sentence report?
Pre-sentence reports (PSRs), give judges and magistrates an expert assessment of the risk posed by an offender, the factors which lie behind their offending and the strengths that they can draw on to move away from crime. They also provide an opportunity for the National Probation Service report writers who produce them to make a sentence recommendation. This expert assessment is vital in effective sentencing: evidence shows that finding the right intervention can help a person move away from crime while the wrong one can actually increasing the chance of reoffending. Sentencers are expected to obtain a PSR before passing any community sentence (other than a stand-alone unpaid work requirement) or any custodial sentence (except one where custody is the only option).
There are five main findings from the briefing which are discussed in turn below:
- There has been a 22% fall in the number of new PSRs produced. This fall means that there has been an increase in the number of sentences passed (both community sentences and custody) where no new PSR has informed sentencing;
- There has been a significant change in how PSRs are delivered to court, with an increasing proportion of PSRs delivered orally rather than in writing;
- While the number of PSRs has fallen, where they are used, the likelihood that sentencers follow the recommendations in the report has increased slightly (by 4% since 2012/13);
- Because cases with PSRs are more than ten times more likely to receive a community sentence, falling numbers of PSRs is strongly linked to the decline in community sentences;
- Our modelling suggests that if the number of PSRs had remained stable that there could have been 33,000 more community sentences a year.
PSRs down by 22% over the past five years
only 144,000 PSRs were delivered in 2016-17, compared to 184,000 in 2012-13, a fall of 22%. This decline has been broadly consistent across all offence groups. This decline in the number of PSRs used is striking given that overall numbers of sentences passed remained stable over this period. It is not clear what the reason is for this, though one possible contributor may be the new NPS policy of reusing existing PSRs for subsequent convictions up to a year after the report was first submitted. However, the trend predates the introduction of this guidance.
More sentences passed without a PSR
Sentencing Council guidance provides sentencers with some flexibility about when they need a PSR but sentencers are generally expected to use a PSR before passing any community sentence (other than a stand-alone unpaid work requirement) or any custodial sentence (except one where custody is the only option). Yet, with the numbers of pre-sentence reports falling, a greater proportion of community and custodial sentences are now being passed without the benefit of a new pre-sentence report.
Most reports are now oral
As well as providing a new definition of PSRs, the 2003 Criminal Justice Act also removed the requirement for them to be delivered to courts in writing, opening the door for the development of a format for the oral delivery of reports. Today, the NPS uses three different report formats: oral and written FDRs (both of which are usually delivered on the day) and standard delivery reports (SDRs) (delivered after an adjournment which is used to obtain additional information). The use of oral FDRs has nearly doubled, from 29% of all reports in 14-15 to 57%
last year. Written FDRs have fallen by a quarter, from 53% to 39% and SDRs have fallen from 19% to only 4%.
Changes driven by policy
These changes in report formats have driven by the introduction of targets for the use of PSR formats.
New operating guidance on the use of different PSR formats was set out in the NPS’s 2016 E3 National
Operating model and an accompanying probation instruction. The model introduced new national targets for the use of different PSR formats. Oral FDRs were to be increased to 60% of all reports, while written FDRs and the most time-consuming SDRs were to be reduced to 30% and 10% respectively.
Sentencers more likely to follow recommendations
Unlike their counterparts in other UK jurisdictions, pre-sentence report writers in England and Wales include a recommendation of what, in their view, is the most appropriate sentence option. The past five years have seen a slight increase in the proportion of PSRs recommending community sentences, from 89% in 2012-13 to 91% in 2016-17. Whether the sentence passed by the court is concordant with recommendation of the PSR
recommendation is a key metric of a PSRs’ effectiveness. There has been an increase in concordance rates over the same time period, rising from 68% to 72%. This has been accompanied by a fall in rates of “uptariffing” (sentencers imposing a more punitive form of sentence than the one recommended by probation) which has fallen from 26% to 19%. Rates of “downtariffing” (sentencers imposing a less punitive form of sentence than the one recommended by probation) have increased slightly, from 68% to 72%.
These emerging findings open up a range of further questions–
- What is driving the fall in new PSRs?
- How is advice being provided in cases which don’t have them?
- And ultimately, what is making sentencers less likely to use community sentences when they don’t have pre-sentence advice?
I look forwards to reading the CJI’s final report, due this September, to see the answers they have found to these questions.