The first day of the month in which we traditionally offer gifts to one another saw a gift being made to criminal lawyers in England and Wales: the entry into force of the Sentencing Code.
The Code is the product of the Law Commission’s 12th programme of law reform, a project which began in 2015 overseen by then Criminal Law Commissioner Professor David Ormerod QC. It consolidates, from over 50 Acts and Statutory Instruments, the general provisions applying to sentencing courts, different types of sentences and certain behavior orders which can be imposed in addition to a sentence. It covers both adult and youth sentencing (updating references to “youth” with “children” and ensuring gender neutral language) as well as sentencing for the armed forces.
It’s simple and modernised form includes attractive mechanisms such as:
the use of “cross-referential drafting” or signposting for ease of reference;
express “availability” provisions to reduce the number of sentences being imposed that were simply not available in law;
a streamlined set of principles for resentencing; and
separate provisions for those aged between 18-20 years and those aged 21+, to avoid mistakes relating to sentences of imprisonment where sentences of detention should have been imposed.
The primary aim in developing the Code was to streamline sentencing procedure and reduce the risk of errors, appeals and delays that had encumbered the sentencing process. It is expected to save the Government an abundant amount of money, estimated to amount to £225 million over the next ten years, by avoiding unnecessary appeals and undue delay.
Unsurprisingly, since its inception, the Code has received overwhelming support from all facets of the criminal justice system, the Government and the general public. Sir Brian Leveson, Head of Criminal Justice, emphasised:
“The need for a clear, logically-structured statute governing sentencing procedure is long overdue. The Commission’s Code is welcomed by judges and practitioners for the clarity it provides. It will bring confidence to the public generally that sentences handed down are accurate and lawful. It will, moreover, save vast amounts of time and money. The Parliamentary time required to enact the Code will be negligible. What are we waiting for?”
Thankfully, we do not need to wait any longer. The Sentencing Act 2020 commenced officially on 1st December 2020 and will apply to any person convicted from that date onwards, irrespective of the commission of the offence (thanks to the Code’s “Clean Sweep” approach). It instigates a new way of legislating: as a “living document”, it is designed to be itself amended, rather than being amended by way of new additional legislation which led to the fragmentation that caused the mess in the first place. As such, it should – hopefully – remain the only source of sentencing procedure legislation for the foreseeable future.
All sentencing guidelines, expanded explanations and explanatory materials have now been amended by the Sentencing Council to reflect the Code, a schedule which can be found here: Sentencing Code – Sentencing (sentencingcouncil.org.uk). The amendments are predominantly to legislation references as the Code does not change the operation or content of the guidelines themselves.
The Crown Court Compendium, Part II of which relates to sentencing, is currently being updated to reflect the changes brought by the Code and is expected to be published soon.
For those worried about the effect this Code may have on their existing extensive knowledge of sentencing procedural law, Parliamentary Counsel has helpfully produced a table of origins which can be found here: Sentencing Act 2020 (legislation.gov.uk). This outlines which provisions of the Code relate to which provisions in the “old” law. Further, one should be reassured by the fact that the Code makes very few substantive changes to the law and makes no changes to any maximum or mandatory minimum sentences.
A number of resources are now available which discuss the Code in more detail, such as Blackstone’s Criminal Practice 2021; Archbold: Criminal Pleading, Evidence and Practice 2021; Sentencing Principles, Procedure and Practice by Lyndon Harris and Sebastian Walker and Blackstone’s Guide to the Sentencing Act 2020, by Michael Oliver, Lucy Corrin and Jack Walsh.
Give thanks for this present, sentencers!
This article ‘Long overdue and a welcome addition: The Sentencing Act 2020’ was written by Dr Laura Tilt (Pupil). For further information on her practice or to instruct Laura please contact Tony George, Senior Criminal Clerk on 01962 868161 or via email.