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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.

By Stuart, Aug 4 2017 11:26AM

We are all now aware of a change in the law which came into effect in April 2017 limiting the period during which a person may be kept on bail without being charged by the police. This was promulgated by the Government as a crack-down on situations, some of which attracted widespread publicity, where people were held in “limbo” for an inordinate length of time awaiting decisions on their cases with all the emotional and psychological difficulties that naturally follow. However, as is so often the case the reality does not always match the hype.

In short, since 3rd April 2017 a person arrested may be released on bail – the date of release being known as the “bail start date” - subject to an “applicable bail period” which has a maximum of 28 days. (In certain “designated” cases this extends to 3 months.) This is particularly relevant where conditions are attached to bail.

The applicable bail period can be extended by a “senior officer” – usually a Superintendent or above – to a maximum of 3 months from the bail start date.

There are 4 statutory conditions to be met before that can be done:

A. The “decision-maker” (in standard cases, the Superintendent) must have reasonable grounds for suspecting that the person is guilty of the relevant offence;

B. S/he must have grounds for believing that the additional time is needed either to make a charging decision or that further investigation is needed of any matter in connection with the relevant offence;

C. S/he must have grounds for believing that the investigation or charging decision is being considered “diligently and expeditiously”;

D. S/he must have reasonable grounds for believing that the extension is “necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail that have been imposed)”.

It is possible that, even with that extension the police may still want more time; in such cases they may apply to a Magistrates’ Court for a further extension, up to a maximum of 6 months from the bail start date (and in some cases, up to 9 months, where even more additional time is required in relation to the investigation or charging decision); if that happens, the Court applies the same conditions except Condition A - there is no obligation to have reasonable grounds for suspecting that the suspect is guilty of the offence. (Statutory time limits in summary proceedings will of course continue to apply.)

The initial application may be considered on paper only by a single justice of the peace – not necessarily a District Judge – although the person in question may request an oral hearing.

The Court may extend that date even further on a subsequent application; the maximum extension period then is 6 months. How that is to be approached remains to be seen given that we are still within 6 months of the implementation of the power.

The law allows for late applications by the police but only if the Court is satisfied that it would not have been practicable for the application to have been made “in time”. (Even if they think it would have been practicable to have done so, the Court may grant the extension anyway.)

In summary, then, the main changes are the requirement that the initial extension may only be granted by a Superintendent and that any bail extensions beyond 3 months from the bail release date will have to be sanctioned by a Magistrates’ Court.

One way round this for the police is to “release (the suspect) under investigation”; in such cases the person is not on bail but the inquiry continues and, should they decide to take further action, the police may contact us and invite us to bring the client to the police station or they may issue a “requisition” to attend Court. (It is important to remember that the law relating to intimidation of witnesses and perverting the course of public justice is unchanged.)

Will this mean an end to the situations where a person is required to wait months and months for a decision in her/his case? On the face of it, no. There will be a higher level or degree of scrutiny but the tests for extensions may not be so rigorous as may have been hoped and a release under investigation could easily mean an open-ended delay with no provision for challenge. Indeed, nearly all of our clients are now released under investigation rather than on bail, thereby totally emasculating the objectives of the legislation.

It is probably only a matter of time before a decision to extend is the subject of an application for judicial review, at which point we may see some guidance issued by the High Court, but in reality most cases are likely to be highly individual and fact-specific. In addition these changes do not apply to cases where the person was first released on bail prior to 3rd April 2017.

Stuart McDonald

4 August 2017


The Criminal Justice System is a dynamic environment with changes occurring frequently.  With this constantly changing landscape both in the law and funding, our focus is always on access to justice and ensuring we do the best job we possibly can for our client.  In each of our blog posts, we aim to bring you our view on a topic that is important to each of us.  Please do check back to see the latest post which we will link to on our Twitter account  @hallinans.