A welcome gift: the Law Commission’s new sentencing code

27 October 2015

The Law Commission is proposing a single sentencing statute which will act “as the first and only port of call for sentencing tribunals”. It published its second consultative document this month as part of the project, which runs to over a thousand pages. Given the immensely complex task this project deserves the unhesitating support of all those associated with sentencing.

Research has highlighted current problems signalling the need for reform. The Law Commission has drawn attention to a study by sentencing expert Robert Banks who examined 400 Court of Appeal cases from 2012. Of the 262 appeals against sentence, he found that 95 related to sentences that had been unlawfully passed in the Crown Court. As Banks points out, “We can no longer say that the sentencing system is working properly”.

There is no shortage of criticism from legal experts and members of the Judiciary in relation to the current sentencing procedure in England and Wales. The Lord Chief Justice has described the law on sentencing as, “Highly complex and contained in a dizzying array of separate but overlapping sources”. The Supreme Court  has summed up the transitional arrangements for sentencing succinctly as “hell”. The Chairman of the Sentencing Council has also welcomed the project. Lord Justice Treacy said a new code could “greatly increase the accessibility and clarity of the law in this area”.

A New Code

The focus of reform will be on streamlining the process by which sentencing tariffs are imposed. The Commission makes it clear that it will not be an exercise in reconsidering the tariffs themselves. Crucially, it is proposed that the new code would apply to all sentencing exercises from the date of its enactment. This “clean sweep” approach will be bolstered with specific safeguards to avoid a conflict with article 7 ECHR so that for offences committed before the enactment date the judge will have to consider what the maximum penalty was at the time of the commission of the offence and cannot impose a greater penalty.

Consultation Process

In July the Law Commission published its first consultative document for this project. It proposed a “sweeping away” of historic procedure and examined how this would be compatible with the human rights of defendants including specific proposals for safeguards.
The second consultative document published this month is a complete collection of current primary legislation governing sentencing. The Commission are asking consultees three questions:

  1. Whether the document is comprehensive;
  2. Whether the areas they have provisionally identified for codification include areas which should not be included in the New Sentencing Code; and
  3. Whether there are any errors in their understanding of the current law.

Consultees are encouraged to review the index and respond in relation to their area of particular interest (such as mental health or financial ancillary orders) if not the document in its entirety. This project is still in relatively early stages with plans to publish a third consultation paper in the summer of 2017 which will include a draft of the New Sentencing Code. A final report and draft Bill for this project is pencilled in for early 2018.

If it’s not too early to talk about Christmas, the prospect of a New Code making the task of all those associated with sentencing in the criminal courts so much easier  is an ideal gift. Perhaps a response to the consultation before the deadline in April 2016 would be a thoughtful gift in return.

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