Wednesday, 11 November 2020

Sentencing Code

The Sentencing Act 2020 received Royal Assent on 22 October 2020.  The Act comes into force on 1 December 2020 - (Commencement Regulations No.1).

Preparing for the Sentencing Act:

In November 2018, the Law Commission proposed a new Sentencing Code for England and Wales - previous post 5 February 2019.  

Earlier this year, the Sentencing (Pre-consolidation Amendments) Act 2020 was passed - previous post 6 March 2020 and also Explanatory Notes to the Pre-Consolidation Act 

The Pre-consolidation Amendment Act 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.

The so-called “clean sweep” was proposed by the Law Commission and is 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.”

It may be unfortunate that the "clean sweep" is to be achieved in a very technical way. As the University of Kent notes point out - "Undoubtedly, the concept of the “clean sweep” can make a significant contribution to clarity, accessibility and coherence. It must also be said, however, that the technical manner in which it is achieved in the Pre-consolidation Bill is anything but clear and accessible. It will challenge the interpretation skills of even the most expert judges and practitioners. In particular cases, there is a real danger that it will become a potent source of the very same ills that it is intended to address."

The Sentencing Act 2000: An Act to consolidate certain enactments relating to sentencing.

Parts 2 to 13 of this Act together make up a code called the “Sentencing Code”.

The Sentencing Act 2020 contains 420 sections and 29 Schedules. The sections are divided into 14 Parts but only Parts 2 to 13 form the Sentencing Code. 

Section 1(4) reminds us that the Code is not exactly all the metareial relating to sentencing.  It states - "For other provision that may be relevant in relation to sentencing, see - (a) Criminal Procedure Rules, and (b) sentencing guidelines.

The Criminal Procedure Rule Committee made a new consolidation of the Criminal Procedure Rules which came into force on Monday 5 October 2020.

Section 2 (Application of the Code) begins - "The Sentencing Code does not apply where a person is convicted of an offence before the commencement date." For those convicted after commencement date, it should only be necessary to consider the Code.

Under section 416, the Act comes into force on 1 December 2020 (as specified by the Secretary of State in Regulations). The Pre-consolidation Amendments Act comes into force "immediately before" the Sentencing Act 2020.

The House of Lords Library provided an excellent short introduction what was then the Sentencing Bill - see HERE

The aim is that the Code will be kept up-to-date as new law is enacted and that electronic versions of the Code will be available online.

The role of the Sentencing Council is not affected by either the Act or the Code and, as mentioned earlier, Sentencing Guidelines will continue to apply.


UK Government - Sentencing Code given Royal Assent

Law Society Gazette 18 June 2020 - An analysis of the sentencing code

Martin Partington Blog -  Sentencing Act given Royal Assent and Enacting the Sentencing Code.

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