Sentencing code

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

To date we have conducted two consultation exercises in the course of this project. On 20 May 2016 we published our formal recommendations on transition to the New Sentencing Code following the extremely positive consultation responses to our issues paper on this topic, published in July 2015. We published our interim report on our compilation of the legislation currently in force relating to sentencing on 7 October 2016, which consultees agreed was generally accurate and comprehensive. We plan to publish a third and final consultation paper, including a draft of the New Sentencing Code, in summer 2017. We aim to produce the final report and draft Bill for this project in 2018.

The law on sentencing affects all criminal cases, and is applied in hundreds of thousands of trials and thousands of appeals each year. Currently, the law lacks coherence and clarity: it is spread across many statutes, and frequent updates are brought into force at different times by different statutory instruments and have a variety of transitional arrangements.

This makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences. A survey of 400 Court of Appeal cases from 2012 by the sentencing expert Robert Banks found that 262 were appeals against sentences and that of these, 95 related to sentences that had been unlawfully passed in the Crown Court. Banks wrote, “[This] figure shows that we can no longer say the sentencing system is working properly. Cases since then have indicated that these figures are not unrepresentative.”

There seems to be near unanimity from legal practitioners, judges and academic lawyers that the law in this area is in urgent need of reform. The courts have repeatedly complained about the complexity of modern sentencing procedure. There is strong evidence that the high number of unlawful sentences being handed down is a direct result of the inability of judges to find their way through the relevant provisions. This undermines public confidence in sentencing and costs a great deal of public money to rectify on appeal.

Our aim in this project is to introduce a single sentencing statute that will 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. It is not the aim of this project to interfere with mandatory minimum sentences or with sentencing tariffs in general. Those will remain entirely untouched, but the process by which they come to be imposed will be streamlined and much improved.

In On 1 July 2015 we published our first issues paper in the project (available below), examining how the New Sentencing Code should be introduced. In that paper, we explained why sweeping away the vast bulk of historic sentencing procedure would cause no unfairness to the defendant, nor would it involve any breach of human rights obligations, as long as certain basic safeguards are observed. We asked a series of consultation questions, and consultation on the paper closed on 26 August 2015.  On 20 May 2016 we published a report containing our formal recommendations on this subject, including an analysis of the responses to our consultation. In summary, we reported how the ‘clean sweep’ approach to transition to the Code, complete with the safeguards we had proposed, had been wholeheartedly endorsed by consultees, and we therefore made recommendations in line with our provisional proposals from the issues paper.

In parallel to our work on transition, on 9 October 2015, we published a document which is intended to be a complete statement of the current primary legislation governing sentencing, with short extracts from some common law and other guidance (guidelines, practice directions etc.) where these are central to the law in a particular area. This is available at the bottom of the page, both as a full, 1300-page pdf file and broken down into sections. We asked consultees a number of questions over a six month consultation that closed on 9 April 2016. We published our interim report on this document on 7 October 2016, summarising the responses we received to that consultation, the corrections to the current law document we have made in light of the responses, and providing an update on how the Sentencing Code project is progressing.

The next stage in the project will be the publication of our final full consultation paper, including a draft of the New Sentencing Code, in summer 2017. In the meantime, we are working closely with Parliamentary Counsel to consolidate and where desirable re-draft the law. We plan to publish the final report and draft Bill for this project in 2018.

Support for the project

The strong support we have received for this project reflects a wide agreement that the law in this area is in urgent need of reform.

The Rt Hon the Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales:

“As I had cause to mention in my editorial for the Criminal Law Review’s 60th anniversary edition, the Law Commission’s project to codify sentencing law is a valuable and long-overdue stepping stone in the process of the rationalisation and clarification of the criminal law. The law on sentencing is highly complex and contained in a dizzying array of separate but overlapping sources. For that reason sentencing procedure represents an obvious candidate for consolidation and simplification.”

Lord Justice Treacy, Chairman, Sentencing Council:

“A sentencing code, containing a single comprehensive statement of the procedure to be followed after an offender’s conviction, would greatly increase the accessibility and clarity of the law in this area. This would reduce the potential for confusion which may create real problems in practice. This in turn would help promote fairness and consistency in sentencing. It could also increase the impact of the Sentencing Council’s work by allowing judges to focus on the key issue: the correct sentence to be imposed in each case based on the Council’s definitive guidelines. Judges would no longer be distracted by the exercise of navigating the current myriad and overlapping sources of sentencing provisions.”

Andrew Caplen, President, The Law Society:

“The current law of sentencing procedure lacks any structural clarity, and is set out in a confusing multitude of sources. Many of these sentencing statutes are themselves only partly in force, whether due to rapid replacement and repeal by yet more legislation or because some provisions are never brought into force, and others overlap considerably in their coverage.

“One result of this unsatisfactory situation is that criminal solicitors, who are under a duty to advise and represent clients during the sentencing process, frequently face an acute challenge in finding, interpreting and advising upon the relevant sentencing provisions. The Law Society therefore firmly supports the Law Commission’s project to codify and simplify the law of sentencing procedure, which will bring clear benefits both in terms of increasing efficiency and improving clarity and transparency of the sentencing process for offenders and the general public.”

Alistair MacDonald QC, Chairman, Bar Council:

“Much sentencing legislation has been enacted piecemeal. As a result, it is often complex, obscure and voluminous. In addition, the tendency has been to bring into force sentencing options within the same Act at different times or, in some cases, to bring into force only part of what appeared to be a unified sentencing regime. This places a near impossible burden both on sentencing courts and practitioners, whether defending or prosecuting.

“The Bar Council therefore greatly welcomes the launch of the Law Commission’s project to simplify and codify sentencing procedure. The fruits of such a project will be of incalculable help to advocates in carrying out their duty to ensure that the court is accurately informed of the legality of any proposed sentence and the potentially available ancillary orders. It will also help to reduce the workload of the Court of Appeal since it will inevitably result in fewer appeals on technical sentencing points.

“Finally, it will provide greater clarity and comprehensibility to society at large so that the general public will be able more clearly to understand how sentences are determined. Such clarity in relation to sentencing law will help to allay many of the misunderstandings, which have dogged this area of the law.”

Alison Saunders, Director of Public Prosecutions:

“For a victim or witness the court process can seem very daunting and people can often be discouraged from being part of proceedings as they are either worried about the length of time it may take or because they do not understand the process they are about to go through.

“Whilst sentencing is only one stage of a trial, it is vital that the public are able to understand the process. This new Code takes the needs of all court users on board and will provide a clear framework for each part of the sentencing procedure, this will allow the public to gain a greater level of understanding of the sentencing process, and hopefully ease some of their concerns.

“The introduction of this single sentencing code should go a long way to increase clarity and transparency, improving the service provided to the public and their confidence in the sentencing process.”

The Rt Hon Sir Brian Leveson, President, Queen’s Bench Division In his January 2015 report, Review of Efficiency in Criminal Proceedings, “commends” our decision to incorporate codification of the law and practice of sentencing into our work plan (paras 369-72).

Documents and downloads

Project details

Area of law

Criminal law

Commissioner

Professor David Ormerod QC