Over the past few years, the Law Commission (LC) has been engaged in a vast project: to codify sentencing procedure. In the Sentencing Code, which has passed through parliament and is awaiting Royal Assent, that aim has now been achieved.
The purpose of the LC’s project was to render the legislation more accurate, clearer to lawyers and judges, and more accessible to the layman. Although these would be reasons enough to embark upon this exercise, a significant additional benefit resulting from the Sentencing Code is expected to be a reduction in the possibility of errors in the sentencing process; such errors being, at present, a regrettable consequence of the complexity and opaqueness of the current patchwork quilt of sentencing provisions.
The creation of the Sentencing Code provides a single resource that, subject to certain limited exceptions, consolidates all matters relevant to sentencing procedure. Such a code lends itself to revision in a way that enables its structure to be retained while permitting amendments to its substance. So, for example, someone wanting to find out about committal to the Crown Court for sentence will always know to look at Part 2, Chapter 2, even if the provisions currently found there are subsequently amended, whereas those who want to know about the court’s power to amend a sentence will be able to find the relevant provisions in Part 12, Chapter 2. Over time, as familiarity with the Sentencing Code increases, the benefits of such an approach may start to be taken for granted, but at present the coherent structure of the code represents a marked and welcome change from the present patchwork.
The project was divided into three consultations. The first consultation (dating back to 2015) produced an innovation called the “clean sweep”. Under the “clean sweep” approach, there will be no need for a provision-specific transitional regime, as each offender sentenced on a date after the Sentencing Code comes into force will be sentenced in accordance with its provisions. This should significantly reduce the difficulty for the court in identifying which of various similar provisions is in force / applicable on the day of sentence. As the Sentencing Code does not include (and has not altered) offence-specific maximum penalties or sentencing guidelines, there should be no adverse impact upon offenders from this approach. In those limited cases in which the application of the code might have the potential to expose an offender to a greater maximum penalty than that applicable at the time of the offence, the Law Commission has provided for the clean sweep approach to be disapplied, in order to ensure compliance with Article 7 and the common law principle against retrospectivity.
The second consultation paper sought to collate all extant sentencing provisions, a massive endeavour resulting in a document running to around 1100 pages. The Bar Council’s Law Reform Committee formed a working group, co-opting members from various criminal chambers, and contributed a substantial response to this consultation, for which we received particular mention in the Law Commission’s report on the results of the consultation.
In July 2017 the Law Commission produced a draft Sentencing Code, for which our working group again prepared a substantial response, covering both points of detail but also broader observations on the structure of the code, and certain matters of principle (including the way in which the code sought to avoid retroactivity). We met with representatives of the Law Commission on more than one occasion to discuss the headline issues.
In our final response, we said as follows about the merits of the project:
“[As previously indicated] the Bar Council is supportive of this project. Both the draft code and accompanying consultation are impressive documents, testament to the hard work of the Law Commission over a number of years. Where appropriate, below we suggest ways in which the content and structure could in our view be improved. None of the comments below detract substantially from our overall view, which is that the project is well on track and should produce a practical, single source of sentencing legislation that will, in the words of the Law Commission, “act as the first and only port of call for sentencing tribunals. It will set out the relevant provisions in a clear and logical way, and ensure that all updates to sentencing procedure can be found in a single place.”
We take the view that that objective has indeed been met, and commend the Law Commission on its work.
Dominic Lewis and Alexandra Robson are members of the Bar Council’s Law Reform Committee