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The Sentencing Code

By Stuart, Nov 21 2017 12:59PM

The Law Commission has put forward a proposal for a Sentencing Code; the consultation is open until 26th January 2018 and they anticipate its clearing Parliament in the summer coming into effect as early as 2019. For an overview and the relevant documentation visit https://www.lawcom.gov.uk/project/sentencing-code/#the-sentencing-code Uniquely the Government’s legislation website contains the draft Bill – the link will take you to it.

The idea is based on what is seen in some circles as the ridiculously complicated state of sentencing law in this country. As an exercise the Law Commission produced a print-out of sentencing legislation in force and it ran to over 1,300 pages – that’s without the sentencing guidelines and case-law. Robert Banks, editor of Banks on Sentence, apparently conducted a review of case reports from the Court of Appeal and identified that in 36% of appeal cases in the study, the Judge at first instance had passed a sentence which was unlawful – not excessive but actually one in which s/he did not have the power to do what s/he did. This only picked up the appeals as well: there may well have been many more cases where either the people involved simply did not identify an irregularity or having done so decided to sit on their hands because, for example, it suited their client better so to do.

The Code is not intended to change the law but merely to bring it “under one roof” in order to achieve the aims of “clarity, confidence and efficiency”. (The Ministry of Justice believes that this could save £25million per year in the costs of rectifying unnecessary mistakes.) In principle, anyone convicted after the date of commencement would be sentenced according to the Code irrespective of the date of offence. This mirrors the sentencing guideline approach currently in use. The Law Commission speaks of a clean sweep – removing all the contradictory and disparate legislation and starting afresh from Day One with this Code. There would be no need to refer to old legislation.

It will be enacted as a piece of consolidation legislation which will occupy minimal Parliamentary time (the consensus being that our lords and masters have certain other things on their minds right now) and it will not introduce new law, alter any provisions relating to minimum or maximum sentences, interfere with judicial discretion or affect levels of sentence. In addition it does not represent an attempt to codify the common law on sentence, such as it survives. The Code will include cross-referencing to relevant provisions which should make navigation through the provisions much simpler and it will be used as an attempt to correct errors and anomalies, for example where certain sentences such as Rehabilitation Activity Requirements may be available dependent on the date of offence.

The protection under Article 7 ECHR will remain so that a person may not be sentenced to a higher penalty than existed at the date of commission of an offence – particularly relevant at a time when “historic cases” are so prevalent. In addition, “recidivist premiums” (for example, the requirements with reference to 30th November 1999 for a minimum sentence in residential burglary, the so-called “third-strike” provisions) will be unaffected. The current position regarding the victim surcharge will also be maintained. Some commencement dates will be removed (this reflects s.104 Deregulation Act 2015 which empowers Ministers to replace commencement dates in legislation with the date on which the provision comes into force). Future amendments to statute relating to issues of sentencing will then be done with explicit reference to the Code and it will contain on its face a statement of the date on which the provision comes into force.

The Sentencing Code has the support of some significant names in this field of law and thus one is led to think that it is happening. Will it make things better? Can things get any worse? Codified laws are common across Europe as a legacy of Napoleon and often appear from the outside to be simple and clear methods of stating the law; however European universities still have huge law libraries with shelves groaning under the weight of case reports and academic arguments as to what the provisions mean and how they should be interpreted. Modern statutory language and phraseology is designed and intended to make the law more accessible and understandable for everyone but those of us of a more Jurassic Period persuasion would argue that the “old” ways tended to be more certain, at least for the lawyers, and to allow for only one interpretation.

If you have an opinion then the Law Commission would like to hear from you.


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