A New Sentencing Code by Alex Davidson, pupil barrister at 2 Bedford Row and former lawyer at the Law Commission

The Sentencing Act 2020 will come into force on 1 December 2020, and with it will come a new Sentencing Code. The Sentencing Code will consolidate provisions relating to sentencing procedure and alter the way in which the courts and practitioners approach sentencing in cases after 1 December 2020. This blog post summarises the key points of the Code that are worth being known by criminal practitioners.

The Purpose of the Sentence Code:

The purpose of the Sentencing Code is to simplify sentencing law and increase the efficiency of the sentencing process, thereby reducing the scope for error. The Code represents the culmination of the Law Commission’s Sentencing Code project.

Numerous problems with the current law of sentencing procedure were identified by the Law Commission. For one, it is complex: a document complied by the Commission of the current law ran to over 1,300 pages in length and spanned over 50 disparate enactments. This does not include historic sentencing regimes to which the courts at present still have to have regard when sentencing. Then there is the way in which sentencing legislation is amended and its frequency, creating a complex and confusing legislative landscape.

These problems manifest themselves through a high proportion of sentences being imposed that are simply wrong in law. This leads to additional cost and delay to the criminal justice system through the correction of those unlawful sentences which are spotted. Cost and delay are also caused more generally by the difficulty in locating, interpreting, and applying complex sentencing law.

The Scope and Content of the Sentencing Code:

And so enters the Sentencing Act 2020, which consolidates provisions relating to sentencing procedure into a single Act whilst adopting clearer and more consistent language. Practitioners will therefore no longer have to navigate through multiple Acts and various statutory instruments when considering sentencing, subject to certain exceptions discussed below. This will likely reduce the time spent preparing for sentencing hearings and the length of hearings themselves.

The Sentencing Act 2020 applies to adult and youth sentencing in England and Wales, as well as sentencing for the armed forces. It is a large Act, comprising 420 sections and 29 Schedules. Although lengthy it is designed to be user-friendly. The Sentencing Act 2020 follows the sentencing process chronologically with the provisions set out in the order that a sentencing court would typically approach them, thereby rendering the law more navigable.

The Sentencing Act 2020 is, predominantly, a consolidation Act, meaning that it makes no substantive change to the law but instead presents it in a more comprehensible format whilst making streamlining changes and correcting errors. Thus, most procedural sentencing provisions (e.g. the powers to commit for sentence, sentencing disposals, and behavioural orders) will now be found in the Sentencing Act 2020. Maximum sentences for individual offences will, for the most part, remain with offence-creating provisions.

To give some examples, the power to commit for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 can now be found in section 14 of the Sentencing Act 2020. The provisions prescribing minimum custodial sentences for firearm, weapon, drug, and domestic burglary offences can now be found in sections 311 to 315 of the Sentencing Act 2020.

Given the consolidatory nature of the Code, it is worth pausing here to explain what the Sentencing Code does not do. First, it does not alter the maximum sentences for any criminal offences. Second, it does not subject an offender to a harsher penalty than that which could have been imposed at the time of their offence. Third, it does not curtail existing judicial discretion in sentencing. Fourth, it does not replace sentencing guidelines or the work of the Sentencing Council.

There are also several topics not included in the Sentencing Code for reasons of scope and so as to not disrupt other self-contained regimes. The Sentencing Code will, however, use signposts – a novel drafting feature in legislation – to prevent other regimes from being overlooked. Accordingly, the following topics fall outside the Code:

• driving provisions relating to penalty points and disqualification;
• confiscation provisions;
• provisions governing release from custody, probation or licence arrangements;
• mental health disposals;
• appeals;
• common law rules (Newton hearings and Goodyear indications); and
• fine bands A to E, which are issued under the auspices of sentencing guidelines.

The Clean Sweep:

As explained above, the Sentencing Act 2020 is predominantly a consolidation Act. However, the Code goes beyond mere consolidation by implementing the “clean sweep” of historic legislation.

The clean sweep is a technical legislative drafting device which ensures that a person convicted of an offence after the Act comes into force will fall to be sentenced by reference to the most up to date law, irrespective of the date of the commission of the offence.

Limited exceptions to the clean sweep apply in order to comply with the common law presumption against retroactivity and principle of non-retroactivity in Article 7 of the ECHR. Thus, the clean sweep could not operate where the penalty under the Act would be more severe than the maximum which could have been imposed at the time of the offence. This will also apply to minimum sentences and recidivist premiums which came into force after the commission of the offence for which the offender is being sentenced. The 43 exceptions to the clean sweep are listed in the Sentencing Act 2020.

The importance of the clean sweep for criminal practitioners is that there will now be no need to refer to old sentencing law, or to consider the effect of any commencement or savings provision, as they will have done so in the past. This will significantly simplify the sentencing process. Crucially, criminal practitioners need not know how the clean sweep operates, only that it obviates the need to conduct an archaeological dig of historic layers of sentencing legislation, subject to listed exceptions.

Future Amendments:

Sentencing is a highly political topic, with frequent amendments to the law. In this year alone we have seen changes to the release point for certain offenders through the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 and the Terrorist Offenders (Restriction Of Early Release) Act 2020. Given the truism that new sentencing legislation will continue to be enacted, does that not risk undermining the whole exercise of consolidation? After all, were the law governing sentencing procedure to become fragmented once again, the benefits of the Sentencing Code would be lost rapidly.

The Law Commission addresses this issue comprehensively in its final report. It acknowledges that, to preserve the benefits of the Sentencing Code, it will be necessary to effect a change in the way the Government approaches future sentencing legislation. To that end, the Law Commission proposes several methods by which sentencing legislation can be enacted to retain the benefits of the Code.

There is every reason to be optimistic that the integrity of the Sentencing Code will be maintained. The Counter-Terrorism and Sentencing Bill, which is currently making its way through Parliament, has been drafted so as to amend the Code rather than create a freestanding enactment. This demonstrates a clear intention on the part of the Office of the Parliamentary Counsel to preserve the benefits of the Sentencing Code when drafting new sentencing legislation. The Sentencing Code will remain the first port of call for legislation concerning sentencing procedure.

Conclusion:

The Sentencing Act 2020 ought to be lauded as a product of Herculean labours that will aid in the proper administration of justice and increase public confidence in the criminal justice system. In no fewer than three sentencing appeal cases has the Court of Appeal (Criminal Division) already remarked on the potential utility to be derived from the introduction of the Sentencing Code. Whilst a period of familiarisation with the Code will now follow, it is hoped, and expected, that these remarks will be vindicated.