Professor David Ormerod, arguably England’s foremost expert in relation to sentencing in the criminal courts, has been tasked with looking at replacing the existing laws and rules on sentencing with a single criminal sentencing code. Interested in how this would impact our criminal defence work, I recently attended a consultation event at which he discussed the proposals.
The Current Law
There are around 1.2 million sentences passed each year in the Magistrates’ and Crown Courts. Around 5,000 appeals against sentence are heard – all of which are affected by the law on sentencing.
David Ormerod and his team have highlighted that the current law on criminal sentencing is too complicated and disjointed.
- Sentencing laws are currently spread out over 1,300 pages and across 48 different statutes.
- There are frequent updates brought into force at different times, by different statutory instruments, making it extremely difficult for practitioners and the courts to understand what the present law on sentencing procedure actually is.
- The language used in many of the sentencing laws is also often outdated and therefore creates ambiguity for judges when applying it.
- When researching sentences, solicitors and barristers are often taken to one act, and then referred to another section of another act. If those legally trained are having some difficulty in determining what the appropriate sentence is for their clients, then the public will undoubtedly be confused when attempting to look up potential sentences themselves.
- The current law on sentencing also causes great difficulty for sentencing judges, who are easily led into error, handing out unlawful sentences, simply 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. A study last year showed that approximately 96 out of 262 sentences passed were unlawful.
- Another consequence is delay – sentencing in criminal cases takes far too long. The average time between a suspect being charged to final disposal of a case is around 55 days in magistrates’ courts and 245 days in the crown courts – the latter being around eight months. This inefficiency costs millions and inevitably causes delay to other cases being heard.
There is near unanimity from all, including legal practitioners, judges and academic lawyers, that the current law in this area is in urgent need of reform.
What the Criminal Sentencing Code will do
David Ormerod and his team have launched an independent consultation which proposes a new Sentencing Code. The Sentencing Code will be a single, well-structured legislative reference point, which confines all sentencing laws in to one place (with some very limited exceptions).
The draft Sentencing Code was published in July 2017. Public consultation is open until 26 January 2018. The final Sentencing Code and accompanying report is due to be published in Summer 2018, meaning that the enactment of the Code could be as early as the beginning of 2019. It should be noted that youth justice will be dealt with later.
The Code sweeps away all the previous legislation on sentencing. It does not make any wider policy changes (it will correct any previous obvious errors in the law), and is a restatement of the law on sentencing – making it more coherent and accessible for all. Practitioners and judges will still therefore need the sentencing guidelines and the offence-making act which sets out the maximum sentence.
What the Sentencing Code Will Not Do
The Sentencing Code will not:
- alter the maximum sentences for criminal offences;
- extend minimum sentencing provisions or create new minimum sentences;
- reduce judicial discretion; or
- replace sentencing guidelines or the work of the Sentencing Council.
It is thought that the Code will save up to £255 million over the next decade, by avoiding unnecessary appeals and reducing delays in sentencing which clogs up the court system. The Code will also boost public confidence in the law on sentencing, by producing one coherent and clear guide that uses modern and gender-neutral language, making it much easier for non-lawyers to understand.
The Code interestingly uses ‘cross-referential drafting’, which effectively means that if a provision requires consideration of another provision, then this will be clearly sign-posted within the provision itself. This will save practitioners and judges a lot of time, since they will not have to go to a whole other piece of legislation – it can all be found within the Code.
Who Will the Sentencing Code Affect?
Any adult sentenced after the commencement date of the Code will be dealt with under the Code, even if they were convicted / pleaded guilty before that date. There are a few limited exceptions to this rule, however. The main exception is where the Code would affect the defendant’s human rights and this will predominantly arise in two situations: firstly, where their Article 7 rights are breached i.e. where the Code would subject a defendant to a harsher penalty than that which could have been imposed at the time of their offence; and secondly, where the defendant has previously committed the same offence, but he is now being treated differently under the Code.
Applying the Code to those who are due for sentence after its commencement date will be a significant help to judges in historic sex cases. This is because they are often required to look at the acts that were in force at the time of the alleged offence (which could be 50 years ago!) and their commencement dates. This inevitably takes time and causes significant delay in these cases. The Code will remove this need to refer back to this historic legislation, meaning that a person sentenced for a historic sexual assault after the commencement of the Code, will only be dealt with under the Code. This will make it much easier for judges in such cases, ensuring justice is better served.
The Future of the Code
Of course, once this confined and easy to use reference point is introduced, it must remain confined and easy to use. The idea is therefore that any new provisions relating to sentence that are introduced after the Code is enacted, for example a new community order, will need to be introduced under the Code, and not under a new or pre-existing act.
Parliamentarians will ensure that when a new provision is introduced in to the Code, it will clearly state on the face of it when that provision was introduced and what date it should be applicable from. This will dramatically save time, since there will be no need for practitioners and judges to look at separate schedules or commencement orders, when trying to determine if a particular provision should apply or not.