The Sentencing Act 2020

Fri 20th Nov 2020

Overdue or just window dressing?

Head of Broadway House Chambers Criminal Team, Stephen Wood QC, looks at this shiny new piece of legislation.

Many years ago, I remember attending a lecture presented by Dr David Thomas QC; he of Thomas on Sentencing and the handy pocket guide ‘Referencer’.

He reminded his audience that when sentencing a youth, before the Youth Court, for (say) an offence of Taking a Motor Vehicle Without Consent, the advocate and court were in effect, having to grapple with eight separate pieces of sentencing legislation.

It is hardly surprising therefore, that so many appeals before the Court of Appeal, arise out of errors made before the Crown Court, by the advocates of course, never the Judge.

For the busy criminal practitioner, prosecution or defence, trying to get to grips or just to keep up to date with labyrinthine pieces of legislation, where important terms are ‘hidden’ away in obscure SI’s has always been a time-consuming task.

So, should the profession as a whole cheer the Sentencing Bill, currently passing through Parliament, with 1st December 2020, as its commencement date? (The Sentencing Act 2020 (Commencement No. 1) Regulations 2020 (SI 2020/1236)).

The Act itself is intended to pull together all existing sentencing provisions into a ‘Sentencing Code’; no doubt to be referred to as ‘The Code’, Your Honour.

But is it a missed opportunity? Rather than review and take the opportunity to revise existing (bad) sentencing provisions (for example the ludicrous two-year maximum sentence for Dangerous Driving), the Sentencing Code is not designed to make any changes whatsoever to the existing substantive law.

It is also debateable whether the Codification has simplified things for the practitioner; there are no less than 420 clauses, augmented by 29 schedules.

Please also remember that the Act does not impact in any meaningful way on the applicability of any Sentencing Guideline.

The Code will only apply to persons convicted after the commencement date; section 2, and existing law will continue to apply. (Look forward to those multiple indictment cases, with conviction dates before and after).

When in force, The Code is arranged into ‘Parts’. Each Part is then divided into chapters and sections.

Parts 2 and 3, deals with general provisions to be considered before sentence is actually passed.  In order, these are: –

  • Deferment of sentence (now to be called a Deferment Order).
  • Committal to the Crown Court for sentence.
  • Remission to Youth Court or Magistrates’ Court.
  • Information and reports.
  • Derogatory Assertion Orders. (Hardly ever deployed but see AG’s Ref (No 119 & 120 of 2005 [2006] EWCA Crim 1501 as a reminder to Courts and prosecutors.)
  • Criminal Courts Charge and victim surcharge.
  • Duty to explain and give reasons for sentence.

Part 4 sets out “the purposes of sentencing”. This re-states the provisions which appear in s.142, Criminal Justice Act 2003.

Part 4 then goes on to address:

  • Sentencing Guidelines.
  • Seriousness and determining sentence.
  • Aggravating factors.
  • Mitigating factors.

As stated, the above all relate to the procedure before a sentence is actually passed by the Court. In the group of Parts, which follow, the Code deals with the specific sentencing disposals available to the Court, setting them out in ascending order of seriousness. We will look at this more crucial part of the Code, below.

Part 11 deals with various other orders which are available to the courts: –

  • Criminal Behaviour Orders.
  • Sexual Harm Prevention Orders.
  • Restraining Orders.
  • Parenting Orders.
  • Binding over (including of parent or guardian).
  • Travel Restriction Orders.
  • Exclusion from Licensed Premises Order.
  • Serious Crime Prevention Order.
  • Slavery and Trafficking Prevention Order.
  • Psychoactive Substances, Prohibition Order.

Part 12 deals with various miscellaneous provisions, such as commencement and alteration of sentence (the ‘slip rule’) and deportation orders.  It also provides for the review of sentence when assistance is, or is not, given to the police.

The Act includes the usual supplementary provisions dealing with powers to make Regulations about amendments and such-like.

Finally, a series of schedules make further provisions relating to specific orders and sentencing situations.  They are referred to in the specific clauses dealing with their subject matters, so they are simple to follow through from the governing clause.

Rather than take you, the reader, through every provision, I will examine a couple of example so that hopefully you will be able to see how the Code is intended to work and how it assists in identifying the relevant powers and considerations which govern the process in any given situation.

Deferring sentence was a device particularly deployed by the former Recorder of Bradford, HH Judge Durham-Hall QC. No doubt, to ensure that the ‘robust alternatives to custody’ were going to be abided by.

Deferment was previously governed by ss 1 -1D Powers of the Criminal Courts (Sentencing) Act, 2000.

The Court will now have to make a ‘Deferment Order’.

Sections 3 to 13 set out the relevant provisions in relation to a Deferment Order, which largely replicate those of the pre-existing law.  What is set out in the new provisions is a step by step guide for the sentencer: –

  • The requirement to make an order, its purpose and requirements which may be made.
  • When an order is available.
  • Necessary preconditions for an order (e.g. consent).
  • The effect of an order (e.g. consequences when appearing for sentence).
  • Restorative justice requirements.
  • Appointment and duties of a supervisor for the deferment period.
  • Failure to comply with terms.
  • Commission of further offence during the deferment period.
  • Powers of the court on sentence after deferment.

The maximum period of deferment remains unaltered at 6 months.

The provisions dealing with the imposition of custodial sentences is to be found at Part 12. The first section of this Part sets out when a custodial sentence should be passed and then: –

  • Defines what a custodial sentence is.
  • Identifies those circumstances where a custodial sentence is not available or is subject to restrictions.
  • Instructs the Court how to decide whether to impose a custodial sentence and the terms of such a sentence.
  • Sets out the various custodial sentences for offenders under 18 (sections 233 to 259).
  • Sentencing offenders aged18-20 years (sections 260 to 276).
  • Sentences for offenders over 21.

This step by step approach is welcome and that appears to be the intention of the drafter. So, for example, sections 277 and then 285 to 305 set out general provisions relating to the imposition of suspended sentence orders and describes them in terms of the availability of such a sentence.

Beginning with section 286, the Act sets out the details of how suspended sentence orders will operate.  Section 286 provides that such a sentence means that the sentence of imprisonment or detention will not take place unless the court orders it to do so after, “an activation event occurs.”

An activation event is, no doubt, what we all understand it to be from existing law.

Consistent with this step-by-step approach, the Act moves on to consider which community requirements may be attached to a suspended sentence order.

The available orders are now set out in a community requirements table.

This Table is set out in section 287, which then directs the reader to the relevant provisions of Schedule 9 of the Code, identifying which part of the Schedule relates to each requirement.

As a whole, it might be argued that the Act presents as a missed opportunity, but it is a welcome step, nonetheless.

The Practitioner Texts have included the Act within their publications for 2021 and there is a lot of helpful information online; particularly ‘Crime Line’.

Familiarisation with the Act and its provisions will become essential for all criminal practitioners to understand fully the Act’s relationship with the Criminal Procedure Rules and the Sentencing Guidelines.

Stephen Wood QC



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