The new Sentencing Code - what is it?

1 December 2020

The new Sentencing Act 2020 (“the Act”), which encompasses the ‘Sentencing Code’ (“the Code”), is in force from today (1 December 2020). The Act, through its Code, has as its central aim the intention of consolidating and simplifying the sentencing regime.
 

It is anticipated that the Code will bring greater clarity to the plethora of different sentencing procedures and regimes by centralising it into one place. Many legal practitioners, judges and academics have supported this reform.

How did the Code come about?

In 2014 the Law Commission initiated a project to consolidate the law on sentencing. This followed a 2012 review which found out of 262 randomly selected cases from the Court of Appeal (Criminal Division), 36% had received unlawful sentences. The Commission concluded that not only did such errors bring financial costs and delays, but they also undermined the public’s confidence in the legal system. The Commission forecasted that introducing the Code would save £256 million over a ten-year period.

How does the new Code work?

Importantly the Code will only address procedural matters relevant to a sentencing court and therefore does not address other relevant substantive matters, such as maximum available sentences for particular offences. Set out across parts 2 to 13 of the Act, and organised to reflect the natural chronological order of a sentencing hearing, the Code comprehensively and impressively covers what a court is permitted to do and order, from the power to award fines and compensation, to the circumstances in which individuals can be disqualified as directors. Save for common law developments (such as Goodyear directions) which could not be incorporated, and specific legislative provisions which were excluded because, for example, they already exist within their own particular code (such as the Road Traffic Act 1988) or the underlying legislation is specific to a particular type of offence (such as the Animal Welfare Act 2006), it will be this piece of legislation that judges and lawyers will now refer to when addressing the various powers open, or not, to them.

The new Code will be a dynamic document, updated as and when amendments are made and will apply to any person who is convicted on or after 1 December 2020 (s.2 of the Act).

Will this change sentencing for the better?

As Max Hill, Director of Public Prosecutions, expressed: 

[The Code] will enable all who are involved in criminal justice to read the relevant provisions clearly and, for the first time through the clean sweep mechanism, in one place. [It] therefore marks a significant leap forward and is to be welcomed”.

Certainly, so long as the Code remains an up-to-date depository of sentencing procedure, it will create significant benefits. To ensure this happens, the Law Commission has recommended (here at 12.3) that all new sentencing law should be drafted as an insertion, amendment or substitution; future provisions should be inserted into the already existing ‘uncommented provisions’ section of the Act (Schedule 22) to avoid courts inadvertently applying uncommented law; care should be taken when considering commencement dates for provisions to remove the need to refer to previous layers of legislation (the “clean sweep” approach); and generally, commencement information should be displayed on the face of the Act, rather than within commencing statutory instruments.

If this is done and the Code is applied in the way it is intended, it should reap benefits in the form of both time and money.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the authors

Ed Smyth is a Partner in our Criminal Litigation Department and represents individuals and corporates involved across the full spectrum of criminal and quasi-criminal matters. 

Sophie Wood is a Senior Associate in our Criminal Litigation Department. Sophie has extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations and public inquiries. 

This blog was also co-authored by Emma Wardall, Paralegal, in the Criminal Litigation Department. Emma has been with the team for 9 years and is an associate member of CILEX.

 

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