Sentencing – Breaking the Code

Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.

Why does this matter?

Research has shown that thousands of sentencing errors are made each year, with many going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

The complexity of the statutory provisions is only one consideration, and we also must take note of a large body of case law. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims, unlawful or inappropriate sentences for defendants, and very costly appeal proceedings that are often necessary to correct the mistakes. Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a ‘Sentencing Code’; this will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

1. Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.

2. Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).

This clean sweep of law will then lead to a single consolidated statutory provision that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure, so apart from minor changes to legislation, there is no material change to existing law. There will be no increases to existing sentences.

Will this make a difference?

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals, and it was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect, so we are looking at mid-2020 in all likelihood.