Friday, 6 March 2020

A Sentencing Code

There is no doubt that, in some instances, sentencing is a difficult matter and the complexity is increased by the accumulation of statutory provisions.  The Law Commission has commented - "The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers."  For example, consider the complexities of "extended sentences" which arose in in the Usman Khan case - previous post 2 December 2019.  Simplification of sentencing is therefore to be welcomed.

The Law Commission's Sentencing Code Project aims to create a single statute which contains all of the law on sentencing procedure - Law Commission November 2018

The government is taking a Bill through Parliament to prepare the ground for the subsequent enactment of such a Code.

The single "Sentencing Code” will have a "clear and logical structure" making the law "more accessible for the public, the judiciary and practitioners."

The Code will be
a consolidation measure bringing the many statutory enactments into one place and presenting them in a more coherent, structured and user-friendly format. It will not:

  • make any substantive changes to the law
  • affect the existing maximum or minimum penalties for individual offences
  • impact on the Sentencing Guidelines or the work of the Sentencing Council
  • result in an offender being subject to a greater penalty than that applicable at the time he or she committed the offence.
A defining feature of the Commission’s proposed Code is referred to as the “clean sweep”. As explained by University of Kent Criminal Justice Notes 6 June 2019 - "This is a vital part of the strategy to make the Code clearer, simpler and more accessible. Critically, the Code provisions will apply to all offenders whose convictions occur after it has come into force. This will remove the current need to identify and apply historic law and transitional provisions. Subject to limited exceptions necessary to respect the fundamental rights of offenders, the courts (and other users) will only have to refer to the provisions of the Code itself. As acknowledged by the Commission, “[t]his represents a considerable departure from current practice and is a change we think will have a significant impact.”

The Sentencing (Pre-consolidation Amendments) Bill  is legally necessary to pave the way for the Sentencing Code. This Bill has passed through its House of Lords stages and is now before the House of Commons. Explanatory Notes are available.  This Bill has two objectives -  

(1) to remove historic layers of sentencing legislation and give effect to the clean sweep; and 

(2) to make changes to the existing law of sentencing procedure in order to enable the consolidation in the Code to take place.

See the Ministry of Justice Statement 4 March 2020

Once this Bill has been enacted it will be possible to enact the Sentencing Code using the parliamentary procedure available for Consolidation Bills - i.e. Bills which do not change the law but bring together, into one enactment, all the relevant legislation. 

6 March 2020

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