Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- 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
On 27 July 2017 we published our draft Sentencing Code and an accompanying consultation paper. The public consultation was open until 26 January 2018. We are now analysing responses.
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.
There is 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 comprehensive source of sentencing law – the “Sentencing Code”.
The Sentencing Code would:
- help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;
- save up to £255million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;
- rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;
- remove the unnecessary layers of historic legislation; and
- allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.
The Sentencing Code would not:
- alter the maximum sentences for criminal offences;
- subject any offender to a harsher penalty than that which could have been imposed at the time of their offence;
- extend minimum sentencing provisions or create new minimum sentences;
- reduce judicial discretion; or
- replace sentencing guidelines or the work of the Sentencing Council.
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.”
This consultation launched on 27 July 2017. Over the last three years, working alongside the Office of the Parliamentary Counsel, we have produced a Bill consolidating sentencing procedure law.
The consultation paper asked a number of questions concerning the decisions taken in the drafting of this Bill, as well as asking consultees for their thoughts on further proposed technical changes to the law. It also asked consultees to critically examine the draft Sentencing Code to ensure that the consolidation accurately reflects the current law except where amendment to the law has specifically been made in furtherance of the consolidation.
The consultation closed on 26 January 2018.
Area of law
Professor David Ormerod QC