Law Commission to codify sentencing procedure

Modern sentencing procedure is complex, and the law that governs it is unclear and difficult to understand.

The Law Commission is today launching its work on codifying sentencing procedure. The aim of the Commission’s work 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.

To lay the groundwork, the Commission is asking practitioners and sentencing judges to provide further examples of the problems that can arise as a result of flaws within the existing system.

Launching the new project, Professor David Ormerod QC, Law Commissioner for criminal law, said:

“We know from discussion and informal consultation with practitioners and sentencing judges that the volume, complexity and, on occasion, obscurity of current sentencing legislation causes real problems in practice, not least a startlingly high rate of unlawful sentences and consequent appeals.

“We are asking the people who work with the system – practitioners and judiciary – to help inform our project. We would like to hear from you about particular instances or types of situation where the current process is adversely affected by the structure, complexity, drafting or volume of legislation.”

Examples can be sent to the Commission at sentencing@lawcommission.gsi.gov.uk.

The Commission’s review is receiving strong support, reflecting 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:

“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.”

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.”

Notes for editors
1. The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.
2. For more details on this project, visit https://www.lawcom.gov.uk
3. For all press queries please contact:
Phil Hodgson, Head of External Relations:  020 3334 3305
Annalisa Ratti:  020 3334 3086
Email:  communications@lawcommission.gsi.gov.uk