Commencement of the Sentencing Code – a welcome step forward

Commencement of the Sentencing Code – a welcome step forward

The long-awaited Sentencing Code has now commenced. What are the key changes and what makes this a significant improvement on the pre-Code Law? Banks on Sentence author, Harry O’Sullivan, Barrister at Goldsmith Chambers, explains what practitioners need to be aware of.

The Sentencing Code, which came into force on 1st December 2020, applies to all cases before criminal courts in England and Wales where conviction occurs on or after 1st December 2020. The Code consolidates the procedural law of sentencing, which means that substantial parts of the Powers of Criminal Courts (Sentencing) Act 2000 and Criminal Justice Act 2003 Part 12, among many dozens of other individual statutes, have been repealed and replaced.

What are the key points for practitioners to be aware of?

  • The Sentencing Code is mainly a restatement of the current procedural law: in the vast majority of cases, the courts’ sentencing powers do not change in substance. No changes are made to offence-specific sentencing powers or the application of the sentencing guidelines.
  • The Code is the product of a lengthy Law Commission project, which sought to reduce rates of legal error due to unnecessary complexity in sentencing law. Over the course of several consultations, a draft Sentencing Bill received strong support from the professions and judiciary.
  • The most important change brought about by the Sentencing Code is the “clean sweep”. Unlike the pre-Code Law, the Sentencing Code will apply to all cases where conviction occurs on or after 1st December 2020, regardless of when the offence was committed. Where, exceptionally, the date of the offence is relevant to the availability of a given sentencing power, these dates are reflected in the Code legislation itself and not buried in layers of secondary legislation.
  • Now that the Code exposes all cases to a single, current legislative regime, slightly different powers may now apply in certain historic cases. Whereas before, practitioners would need to consider the date of offence commission and commencement orders for a given change, under the Code only the consolidated law applicable to cases as of 1st December 2020 will apply. This is the position whatever date the offence was committed.
  • Certain exceptions to the above have been made and are carefully reflected in the legislation itself. This is to ensure that the Sentencing Code does not expose any offender to a greater punishment than could have been imposed at the date of their offence: this is consistent with ECHR Article 7 rights.
  • There are significant improvements in presentation that will help the user of the legislation, both in bringing statutory material into a single document, but also in modernised and consistent language and other presentational devices such as “groups of parts” and “signposting” provisions.

A new approach to commencement – if at first you don't succeed…

Previous attempts to consolidate sentencing law have not succeeded. This may be largely due to the way previous changes to the law were brought into force. The Criminal Justice Act 2003 and the many-layered amendments to it over 15 years since its introduction, for example, largely took effect for cases involving an “offence committed on or after a given date”.

This “offence commission on or after” approach was over-cautious and is considered to have made the old law more complicated. Given the existence of historic offending, delays in the criminal justice system, and offenders’ tendency not to come to justice immediately after committing offences, commencement based on offence date effectively preserves versions of the law, layer upon layer. There was practically a different statutory regime applicable for any given date. Every time lawmakers inserted or amended a community requirement, for example, practitioners had to consider a new commencement date and which side of the line an offence had fallen.

To illustrate the problem, take (what should be!) a relatively simple example: the maximum number of hours permitted under a curfew requirement of a community order or suspended sentence. Criminal Justice Act 2003 s 204(2) gave the maximum as 12 hours per day. This was amended by Legal Aid, Sentencing and Punishment of Offenders Act 2012 s 71 to 16 hours. Commencement of that change was brought about by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 4 and Saving Provisions) Order 2012 (SI 2012/2906) art 2(a) which came into force on 3rd December 2012. However, per a saving provision in art 3(1) of the same order: “The coming into force of [the amendment in question] is of no effect in relation to an offence committed before 3rd December 2012”.

Other statutes have taken different approaches, for example: proceedings “where an investigation is opened on or after a given date”, or cases with “a first hearing on or after a given date”. Ultimately, the line does have to be drawn somewhere for the new law to ever take practical effect.

The Law Commission gave careful consideration to this question and ultimately settled on “conviction on or after” as the clearest, brightest line to draw between the old law and the Sentencing Code. Conviction dates are clear. They are formalised and recorded on a memorandum of conviction by courts. Thus, they present the least opportunity for confusion. Further, there is often minimal or no delay between conviction and sentence. Therefore the “conviction date” commencement line balances clarity with immediacy of impact.

Where the pre-Code law still applies – breaches, adjournments, deferment

Thanks to the approach I describe above, offenders who have already been sentenced before 1st December 2020 and are dealt with again for an offence with a pre-Code conviction, will continue to be dealt with under the pre-Code law. Deferred sentences, adjournments for pre-sentence reports and breach cases (breaches of community orders, suspended sentences, conditional discharges etc.) will continue to fall under the old statutory regime for some time to come. These cases will diminish over the next few years and thus the Code will apply to practically every case relatively soon.

Banks on Sentence has been fully updated to reflect the changes made by the commencement of the Sentencing Code and set these in context with applicable Sentencing Guidelines, Practice Directions, and case law. This will also feature in the next print edition when it is published in April 2021.

To access the latest version of Banks on Sentence, exclusively available on Lexis®Library: 

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About the author:

Harry is the author of Banks on Sentence: the definitive sentencing guide, having taken over from Robert Banks in 2019. Harry is a practising criminal barrister who is regularly instructed to prosecute and defend in London and the South Eastern Circuit. He is a member of the CPS advocates panel at grade 2.

Before coming to the Bar, Harry worked at the Law Commission of England and Wales as a research assistant assigned to the Sentencing Code project. Harry has worked for several years as a legal researcher for Blackstone’s Criminal Practice and was a contributing author on the 2017 edition of Miller on Contempt of Court.