Newsletters Criminal Defence 2nd Nov 2020

The Sentencing Code – Have we finally solved the Sentencing Jigsaw?

Despite the sentencing being undertaken by Courts on a daily basis, the body of law which governs this exercise is anything but straightforward. The current law of sentencing is complex, multi-faceted and ever evolving. Sentencing procedure is spread across a vast number of statutes. In its examination of sentencing law, the Law Commission compiled a document of the sentencing law in force as at August 2015, which ran to some 1,300 pages, which did not include the historic sentencing regimes that need to be considered in cases of historic offending. The challenge posed by the vast landscape of sentencing law leads to delay, uncertainty, costly appeals, and unlawful sentences being imposed. A study in 2012 of 262 randomly selected Criminal Division of the Court of Appeal found that 95 of them involved sentences that were ultimately deemed to be unlawful. The task of navigating the law on sentencing to ensure that a lawful sentence is imposed can be just as onerous as the task of deciding what the actual sentence should be. On any view, this is far from a satisfactory position.

These shortcomings have long been recognised by all those who work in the criminal justice system. Material steps to remedy them can be traced back to 2014 when the Law Commission was tasked by the government with the project of consolidating the law and procedure on sentencing in England and Wales. The solution arrived at by the Law Commission is the introduction of a “Sentencing Code”. This will be a single statute, which contains all of the law on sentencing procedure, comprised of a coherent and logical structure to make it more accessible for the public, the judiciary, and practitioners. The draft Sentencing Code was published in November 2018 following extensive consultation exercises and issues papers.

The Law Commission have identified 3 key benefits to the new Sentencing Code:

  1. It makes the law simpler and easier to use;
  2. It increases public confidence in the criminal justice system; and
  3. It increases the efficiency of the sentencing process.

The aim of the Sentencing Code is to provide a single reference point for the law of sentencing as opposed to the current system where judges and practitioners have to consult various statutes, authorities, and legal guidance in a piecemeal fashion. The consolidation of the sentencing provisions will be a welcome development to all those who partake in the sentencing exercise.

It is noteworthy however that the Sentencing Code will not:

  1. alter the maximum sentences for criminal offences;
  2. subject any offender to a harsher penalty than that which could have been imposed at the time of their offence;
  3. extend minimum sentencing provisions or create new minimum sentences;
  4. reduce judicial discretion; or
  5. replace sentencing guidelines or the work of the Sentencing Council.

The provisions of the Code are designed to closely follow the chronology of the sentencing process. After the introduction and overview of Part 1, Part 2 concerns the powers exercisable before passing sentence, including deferment, the various procedures for committal, and remission back to the Magistrates or Youth Courts. Part 3, which is rather vaguely titled “procedure” includes provisions dealing with pre-sentence reports and other means of obtaining information about an offender. It also embodies the duty of the Court to give reasons. Part 4, which concerns the exercise of the Court’s discretion, contains the more substantive provisions relating to the purposes of sentencing, the role of sentencing guidelines, and determining the seriousness of an offence. Parts 5 to 10 set out the law relating to different disposals available to the Courts, from driving disqualifications, to custodial sentences, whilst Part 11 deals with ancillary orders, such as Criminal Behaviour Orders and Sexual Harm Prevention Orders.

The substance, then, of current sentencing policy, embodied most prominently in the various offence-specific definitive guidelines, remains unchanged. Instead the Code presents a single framework, within which the exercise of applying those guidelines can occur.

It is envisioned also that the Code will have the capacity to easily absorb amendments into its coherent structure, thus avoiding the emergence of further additional legislation in years to come. The Code, it is hoped, will be a living, breathing device, that will adapt as sentencing policy is developed.

The Sentencing Act 2020 received Royal Assent on 22 October 2020. It is hoped that this substantial reform, will make the sentencing exercise more comprehensible to practitioners, judges, and lay people alike, and, as a result, lead to fewer costly and unjust mistakes being made.


Paul Renteurs and Sophia Dower

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