Martin Partington: Spotlight on the Justice System

In 2018, the Law Commission published the final report on one of its largest law consolidation exercises – the creation of a Sentencing Code. The Sentencing Code does not make new law, but consolidates into a single place all the law relating to sentencing.

The law on sentencing was spread throughout a large number of enactments. It had become particularly complex because changes in the law often resulted in earlier pieces of legislation being repealed except for specific provisions relating to sentencing. Thus the law applicable to any particular offence could be very hard to discover. Indeed, it was so hard to discover that, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal (Criminal Division) found that 36 percent had received unlawful sentences. The Law Commission attributed these results to the level of complexity in the existing legislation.

In order to achieve this outcome, two pieces of legislation are required:

• The Sentencing (Pre-consolidation Amendments) Act 2020
• The Sentencing Bill

Sentencing (Pre-consolidation Amendments) Act 2020

This is a very technical piece of legislation which amends current law so that it is brought into a state to be consolidated when the Sentencing Code itself comes into effect (which will be on 1 October 2020). Once the Code is effective, the pre-consolidation Act becomes redundant.

The Sentencing Bill 2020

The Sentencing Bill which contains the Sentencing Code is a consolidation bill. It does not therefore need to go through the normal Parliamentary Process. Instead it is considered by a specially constituted Joint Committee on Consolidation Bills. At the time of preparing this note, the Bill has been introduced into the House of Lords where it has received its second reading. However, the Joint Committee has not yet been established.

Sentencing code: structure
The code is set out in Parts 2 to 13 of the bill. The code’s structure follows the chronology of a sentencing hearing, as follows:

(a) Before sentencing:

• Part 2 is about powers exercisable by a court before passing sentence.

(b) Sentencing:

• Part 3 is about court procedure when sentencing.
• Part 4 is about the discretion a court has when sentencing.

(c) Sentences:

• Part 5 is about absolute and conditional discharges.
• Part 6 is about orders relating to conduct.
• Part 7 is about fines and other orders relating to property.
• Part 8 is about disqualification.
• Part 9 is about community sentences.
• Part 10 is about custodial sentences.
• Part 11 is about behaviour orders.

(d) General:

• Part 12 contains miscellaneous and general provisions about sentencing.
• Part 13 deals with interpretation.

As a consolidation bill does not alter the law, there are no explanatory notes. However the House of Lords Library has provided an excellent short introduction to the Bill, available at  https://lordslibrary.parliament.uk/research-briefings/lln-2020-0084/

What about new offences or new sentences? Keeping the Code up to date

As is well known, Governments frequently change the criminal law, adding new offences of amending existing ones. Henceforth the sentencing implications of such changes are to be dealt with by way of amendments to the Sentencing Code. The intention is that the Code will automatically be updated as new sentencing provisions are enacted. One of the first examples of changes to the Code can be found in the Counter Terrorism and Sentencing Bill 2020, currently before Parliament. See https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing/documents.html

Up to date electronic versions of the Code will be available online.

The role of the Sentencing Council

Sentencing powers give sentencers considerable discretion. The role of the Sentencing Council, giving guidance on how that discretion should be exercised, is unaffected by the Sentencing Act and the creation of the Sentencing Code.