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Bringing sense to sentencing

Fri 11th Aug 2017

The complexity of sentencing is the most common complaint heard from criminal practitioners, judges and magistrates. Legislation on sentencing is spread across many statutes and statutory instruments. Matters are made more complicated by many changes that are brought into effect as a constant stream of legislation is enacted by parliament, often in response to a particular case or news story. Lord Phillips stated that, ‘hell is a fair description of the problem of statutory interpretation caused by (these) transitional provisions.’[1] A view that I have agreed with when trying to work out which sentencing regime is applicable for a particular offence on a particular date.

As a response to the growing pressure from the judiciary and the profession the Law Commission have been working on the issue since 2015. Under the direction of that legal dynamo David Ormerod QC the Law Commission published a draft Sentencing Code, which is now out for consultation until 26 January 2018. The draft Code aims to bring all sentencing legislation under one consolidated bill.

The need for reform is clear and was established by research conducted by Robert Banks for the 2013 edition of Banks of Sentence, where in 95 of 262 sentence appeals, an unlawful sentence had been passed. Banks further discovered that in a small number of cases, neither the Court of Appeal or the advocates did not spot errors in sentencing[2]. Those errors were only identified by the research.

The draft Code is a substantial document, 1300 pages long. It has 3 aims:

1)            to ensure that the law relating to sentencing is readily comprehensible and operates within a clear
framework,
2)            to increase public confidence in the Criminal Justice System, and
3)            to ensure that the Criminal Justice System operates as efficiently as possible.

The estimation is that making the sentencing of offenders more straight forward through the code will save £255.7 million over 10 years by freeing up court time and fewer appeals.

All legislation will be brought into one piece of legislation, which is structured logically. The Law Commission has adopted a ‘clean sweep’ approach to historic law and transitional provisions. This means that the law will apply to all offenders whose convictions occur after the Sentencing Code has come into force, which will be of particular help, to those who deal with historic sex offences. The draft codes accepts that where, maximum sentences have changed or minimum sentences apply for repeat offending, that ‘clean sweep’ cannot apply. The draft Code however makes these issues clear and provides the correct sentencing regime for such offences. The judiciary are in favour of moving to a single sentencing regime for offences sentenced after the Code coming into force.

Areas that are currently not included in the draft Code are: road traffic sentencing, confiscation and youth sentencing.   Youth sentencing has not been included as there is an ongoing review of youth sentencing, but a section is allocated for youth sentencing in the code.

Within the draft Code there have been real attempts use clear and simple language which is also consistent across the code.

The draft Code is an impressive document, which has taken an incredible amount of very detailed and painstaking work. David Ormerod QC and his colleagues at the Law Commission deserve our thanks for their efforts.

Responses to the consultation can be sent to sentencing@lawcommission.gsi.gov.uk. The consultation and supporting documentation are on the Law Commission website:  https://www.lawcom.gov.uk/project/sentencing-code/.

Giles Bridge

[1] [2010] UKSC 30 at 1.

[2] http://www.banksr.co.uk/images/Other%20Documents/Unlawful%20orders/2012%20%2811%29%20Sentencing%20illegalities%20Sorted%20by%20error.pdf

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