Introduction
A Bill has just been introduced in the Westminster Parliament paving the way for the introduction of a Sentencing Code for England and Wales. This can be traced back to 2014 when the Law Commission was tasked by the government with a project to consolidate the law and procedure on sentencing in England and Wales. The Commission delivered its report, together with a draft Code and a supplementary Bill in November 2018. It is the latter that has been introduced in Parliament under the title Sentencing (Pre-consolidation Amendments) Bill 2019.
Complex sentencing law and procedure
Sentencing is arguably the most significant feature of criminal practice. About 1.2 million offenders are sentenced each year in the courts of England and Wales. Sentences imposed span a wide range, including: imprisonment, a wide variety of community sanctions, fines, financial orders and compensation/reparation orders, as well as ancillary orders such as licence confiscation, freedom of movement restrictions and registering or reporting obligations. The impact on individual offenders and their families can be life changing. More broadly, the mere existence and operation of the complex web of punishments and procedures at the heart of our criminal process reflect our social and democratic values.
It is fundamental to the rule of law that the criminal law (which includes sentencing law and procedure) is sufficiently clear and accessible to enable an individual to understand the potential consequences of his or her actions and the penalty to which he or she may be liable. There is a very strong case for saying that the current sentencing law and procedure does not always meet this standard. Indeed, the Law Commission stated bluntly that “[i]t is simply impossible to describe the current law governing sentencing procedure as clear, transparent, accessible or coherent.” The volume of legislative material to which a sentencing court must have regard is larger, more diverse and complex than ever before. The Commission compiled 1,300 pages of currently applicable provisions from Acts as varied as the Justices of the Peace Act 1361, the Company Directors Disqualification Act 1986 and the Dangerous Dogs Act 1991. Over the past 30 years alone there have been no less than 14 major pieces of primary legislation on sentencing procedure.
Navigating through this legislative thicket to find the law and procedure applicable to the particular facts of an individual case is a daunting exercise replete with the capacity for error. The Commission’s 1,300-page compilation comprises only the law applicable to recent offences. A court dealing with an older offence may have to find the sentencing provisions applicable at the time the offence was committed and interpret them in the light of subsequent amendments. This task is rendered substantially more complex by the speed and frequency of amendments, and the diverse methods in which the laws might be amended.
While most amendments apply prospectively (i.e. from the date they come into force), some apply retrospectively (i.e. to reach offences committed, or convictions recorded, before the amendment came into force). Even for the mainstream prospective measures, there is no consistency in the manner of their application. Some might apply only to offences committed after they came into force, some might apply only to offences where the proceedings were commenced after they came into force, some might apply only to convictions recorded after they came into force, and so on. Amending the law in this manner can make it very difficult for judges and practitioners, let alone laypersons, to identify which particular version of the sentencing laws applies to the facts of an individual case. Inevitably, the result is frequent and costly errors in sentencing and, ultimately, a serious blemish on the rule of law.
Benefits of a single Code
The Law Commission was charged with the monumental task of converting this complex mass of statutory enactments into “one Act with a clear framework and accessible drafting”. The aim was to produce a single Code which would provide the courts with a single point of reference, and which was capable of accommodating amendments and adapting to changing needs without losing structural clarity. In particular, the Code should be informed by “the principles of good law”; namely that it should be “necessary, clear, coherent, effective and accessible.” In doing so, however, the Commission had to avoid restricting the capacity of Parliament and the government to effect changes in sentencing policy. Penalties available to the sentencing courts were off-limits, except to the extent that some consideration of them was unavoidable to achieve the fundamental aim of a single coherent Code.
Once fully implemented, the Code should have a transformative effect on sentencing law and procedure. It should bring much greater clarity to the law and procedure, making it more accessible, reducing the number of errors and making sentencing hearings faster and more efficient. For the most part, the Code will be a consolidation measure bringing the complex strands of statutory enactments into one place and presenting them in a much more coherent, structured and user-friendly format. It will not make any substantive changes to the law. So, it will not affect the existing maximum or minimum penalties for individual offences, nor will it impact on the Sentencing Guidelines or the work of the Sentencing Council. Equally, it will not result in an offender being subject to a greater penalty than that applicable at the time he or she committed the offence.
“Clean sweep” approach
A defining feature of the Commission’s new (draft) Code is what it refers to as the “clean sweep”. This is a vital part of the strategy to make the Code clearer, simpler and more accessible. Critically, the Code provisions will apply to all offenders whose convictions occur after it has come into force. This will remove the current need to identify and apply historic law and transitional provisions. Subject to limited exceptions necessary to respect the fundamental rights of offenders, the courts (and other users) will only have to refer to the provisions of the Code itself. As acknowledged by the Commission, “[t]his represents a considerable departure from current practice and is a change we think will have a significant impact.”
The “clean sweep” approach is complemented by drafting changes aimed at modernising old and outdated terminology prevalent in the current legislation. These drafting changes will employ gender neutral terms and generally modernise the terminology to make it “more relevant and familiar to users of 21st century legislation”. Equally, the Code will “streamline the law to provide added consistency and clarity, and errors and omissions in the current law will be corrected.” To this end, certainty is adopted as the guiding principle.
Two complementary enactments
Although the Code will not alter existing penalties provided by law or reframe sentencing policy or principles, it is more than a conventional consolidating exercise. The “clean sweep” approach and the drafting changes will clearly effect substantive changes to the law that are inconsistent with a mere consolidating measure. Accordingly, the introduction of the consolidating Code requires two separate enactments. One of these will provide for the Code itself. The other, the Sentencing (Pre-consolidation Amendments) Bill, contains what the Commission refers to as “two paving provisions” to make way for the consolidating Code. These will amend the existing law to provide for the “clean sweep” approach and the other substantive changes that will be reflected in the Code.
The key provisions of the Pre-consolidation Bill will only come into force if the Code Bill itself is passed (see further below). If the Code Bill is passed, the key amending provisions of the Pre-consolidation Bill will come into force immediately before the date on which the Code Bill comes into force. The net effect is that the Code Bill will qualify as a consolidating measure as, technically, it will be consolidating the law applicable immediately before it came into force. One of the spin-off benefits of this is that it will be subject to a fast-track legislative procedure.
Pre-consolidation amendments Bill
The Pre-consolidation Bill was introduced in Parliament on 22 May, with the second reading in Grand Committee scheduled for 12 June. It consists of five sections and two schedules, and it runs to 45 pages. The key provisions are highly technical and difficult to interpret. It seems that the first of these paves the way for the “clean sweep” approach. This is achieved essentially by amending current (pre-Code) legislative provisions so that the consolidation can apply uniformly to offenders convicted after it comes into effect, without having to include exceptions for some offenders who would otherwise be entitled to be dealt with in accordance with legislative provisions applicable, for example, at the time they committed the offence. Amending such pre-Code enactments in this manner helps ensure that the Code qualifies as a consolidating measure, in that it is not seen to effect a substantive change to the pre-Code law.
It is expressly stated that this ‘clean sweep’ provision does not apply where the effect would be to increase the maximum term of imprisonment or maximum fine applicable to the offence. Similarly, it does not apply to certain situations in a list of 37 disparate provisions spanning: surcharge and criminal courts charge, compensation orders, references to legal aid, driving disqualification, references to remands of children, detention and training orders, life sentences, mandatory life sentences and mandatory minimum sentences. The Secretary of State is also given a power to make regulations to exempt any pre-existing provision from the effects of the amendment.
Undoubtedly, the concept of the “clean sweep” can make a significant contribution to clarity, accessibility and coherence. It must also be said, however, that the technical manner in which it is achieved in the Pre-consolidation Bill is anything but clear and accessible. It will challenge the interpretation skills of even the most expert judges and practitioners. In particular cases, there is a real danger that it will become a potent source of the very same ills that it is intended to address.
The other key provision in the Bill amends and modifies a very large number of disparate sentencing provisions essentially to iron out inconsistencies and uncertainties that have developed in successive enactments and amendments over the years, and to modernise terminology. The amendments and modifications are set in Schedule 2 which runs to 126 paragraphs. The Secretary of State can also make further amendments and modifications to existing sentencing legislation as necessary by regulations. The intention is that all of these changes will be incorporated as part of a single, structured, coherent and consistent body of sentencing law and procedure in the consolidating Code.
Which comes first?
As noted above, it is envisaged that the Pre-consolidation Bill will only come into force if the consolidating Code itself is passed. At the same time, the latter can only be enacted as a consolidating measure if the amendments to the pre-existing law are effected by the former. This has resulted in peculiar commencement provisions for the Pre-consolidation Bill. They stipulate that the Bill will come into force on the day it is passed, insofar as that is necessary to allow the Secretary of State to make regulations under its key provisions. It is also stipulated, however, that the Bill itself and any such regulations made under it will only come into force if the consolidating Code is passed. It is further stated that once the consolidating Code is passed, the Bill (insofar as it is not already in force) together with regulations made under it, comes into force immediately before the date on which the consolidating Code comes into force. This is tantamount to solving the ‘chicken and egg’ conundrum. Critically, the Bill and regulations, insofar as they apply to a person convicted of an offence, only apply in respect of a person convicted after the Code comes into force (the “clean sweep”).
The draft Code
Clearly, the consolidating Code is the main course. The necessary Code Bill has not yet been introduced in Parliament. It can be expected, however, that it will reflect the draft prepared by the Law Commission. This contains 416 clauses and 28 schedules and runs to 323 pages. The core provisions are collected and presented together in Parts which broadly follow the chronology of a sentencing hearing. The Parts, in turn, are grouped together as: introductory provisions and overview; general provisions applying to sentencing courts; disposals (sentencing options); further powers relating to sentencing; and miscellaneous and supplementary provisions. It is worth listing the Parts in each of the core substantive groupings as they convey a sense of the scope and coherent structure of the Code.
The general provisions applying to sentencing courts comprise:
- Part 2: Powers exercisable before sentence, including deferment of sentence, and committal and remission powers.
- Part 3: Procedure, including pre-sentence reports and derogatory assertion orders.
- Part 4: Exercise of court’s discretion, including the purposes of sentencing and the determination of the seriousness of an offence.
Disposals comprise:
- Part 5: Power to impose absolute and conditional discharge.
- Part 6: Orders relating to conduct, including referral orders and reparation orders.
- Part 7: Financial orders and orders relating to property, including fines, compensation orders and forfeiture orders.
- Part 8: Disqualification, including driving disqualification and disqualification orders relating to the keeping of animals.
- Part 9: Community sentences, including youth rehabilitation orders and community orders.
- Part 10: Custodial sentences, including suspended sentence orders, imprisonment, detention and extended sentences.
Further powers relating to sentencing comprise:
- Part 11: Behaviour orders, including criminal behaviour orders and sexual harm prevention orders.
The future
The introduction of the Code will not dispense with the need to make future amendments to sentencing law to accommodate policy and procedural developments. In order to retain the critical clarity and coherence of the Code, however, it is vital that future amendments are made to the Code rather than in the form of separate enactments. The Law Commission envisages the Code as “living document” that will be amended from time to time. Moreover, any such changes to sentencing law should be displayed on the face of the relevant provisions, rather than in an obscure provision of the Code or in secondary legislation. This will help retain the Code’s clarity, simplicity, coherence and transparency. It remains to be seen whether the Code and the Pre-Consolidating amendments will deliver on these objectives.
Download the June 2019 edition of Criminal Justice Notes