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New pre-sentence report protocol
The 'pre-sentence report before plea' protocol now applies to all magistrates' courts in England and Wales, enabling defence solicitors to request a report before the first hearing.
The government published a press release on 3 August 2021 concerning the protocol.
In October 2020, we agreed the protocol with:
- HM Courts and Tribunals Service (HMCTS)
- the National Probation Service (NPS)
- the Crown Prosecution Service (CPS)
The protocol has been approved by the senior presiding judge of England and Wales.
A pre-sentence report before plea applies where:
- it’s anticipated that an adult defendant, charged to appear before a guilty anticipated plea (GAP) or not guilty anticipated plea (NGAP) hearing on bail or postal requisition, will be sentenced in the magistrates’ court; for offences triable either way, see Sentencing Council allocation guidelines
- a defendant is willing to indicate a guilty plea to all offences charged on the full prosecution basis
- a defence legal representative, on behalf of their client, requests a pre-sentence report before plea
The protocol does not apply to cases to be sent or committed for sentence to the Crown Court, where Criminal Practice Direction 3A.9 and guidance within the Better Case Management Handbook should continue to apply.
NPS will decide whether to produce the report before the hearing. NPS will then notify the court and parties of the decision by email.
Where NPS produce a report, they will upload it to Court Store for the hearing.
At the hearing, the court receives the defendant's plea in the usual manner.
Where the defendant pleads guilty, the court proceeds towards sentence and decides whether to access then consider the pre-sentence report.
The parties have a duty to actively assist the court by early communication to establish the defendant’s likely plea at the first available opportunity.
The court has a duty to obtain a pre-sentence report before considering community or custodial sentences unless it decides such a report is unnecessary.
The statutory definition of a pre-sentence report (section 158 of the Criminal Justice Act 2003) means a court may consider a pre-sentence report which it has not commissioned, to meet its duty.
The process also preserves the taking of a guilty plea by the court, following a clear acknowledgement of guilt.
The process will mutually benefit the court, defendant and criminal justice partners as it will:
- enable the court, in suitable cases, to proceed efficiently and expeditiously to sentence following a guilty plea without adjourning or standing the case down for a pre-sentence report
- enable more flexibility in scheduling the pre-sentence report interview, which takes place prior to the hearing – the defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report
- reduce the time spent physically at court, when social distancing measures are in place, therefore protecting all parties’ welfare during the pandemic