Tuesday, 5 February 2019

A sentencing code

In November 2018, the Law Commission proposed a new Sentencing Code for England and Wales.  The Commission announced -

"A new Sentencing Code will reduce the number of unlawful sentences being handed out and save £250 million over ten years .... When they sentence offenders, judges have to contend with more than 1,300 pages of law filled with outdated and inaccessible language. This law is contained in over 65 different Acts of Parliament, and has no coherent structure. This makes it difficult for judges to identify and apply the law they need, which can slow the process of sentencing and lead to mistakes.  The Commission is recommending that anyone convicted from now on should be sentenced under a simplified and modern Sentencing Code. This would mean that judges would no longer need to search back through layers of old law.  This would decrease the number of unlawful sentences handed out, avoid unnecessary appeals and reduce delays in sentencing."

It is now for the Government to decide whether to enact the Sentencing Code.   Because the Sentencing Code is a consolidation Bill it can be enacted through the special procedure for such Bills. This procedure takes up minimal time in the debating chambers of the Houses of Parliament, with parliamentary scrutiny instead provided by a Joint Committee of the two Houses.  However, before the Sentencing Code can be enacted as a consolidation Bill there is a need for a small number of clauses to be passed in a suitable Public Bill making technical amendments to the law.

Although the draft Bill extends to 416 sections and 28 Schedules it appears that it will be generally welcomed by practitioners.  Should anyone dopubt that simplification is essential then please read the speech by Sir Brian Leveson (President of the Queen's Bench Division) on 4 December 2018 - Law reform Lecture at LSE - (with thanks to Paul Magrath of the ICLR for drawing my attention to this speech). 

With regard to getting the code introduced, Sir Brian said (at para 29) -

What the proposed could does and does not do:

The Sentencing Code would:
  • help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;
  • save up to £255million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;
  • rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;
  • remove the unnecessary layers of historic legislation; and
  • allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.
The Sentencing Code would not:
  • alter the maximum sentences for criminal offences;
  • subject any offender to a harsher penalty than that which could have been imposed at the time of their offence;
  • extend minimum sentencing provisions or create new minimum sentences;
  • reduce judicial discretion; or
  • replace sentencing guidelines or the work of the Sentencing Council.


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