After four public consultations conducted over several years, the Sentencing Code has now received Royal Assent and will come into force on 1 December 2020. The Sentencing Code is intended to be a single point of reference for the procedural law considered by courts when sentencing offenders. It consolidates a substantial body of complex procedural sentencing law and will ensure greater transparency and clarity is achieved when passing sentences.
The Sentencing Act 2020 received Royal Assent on 22 October 2020 and will come into force on 1 December 2020 1. The Act introduces the “Sentencing Code” – a framework that consolidates and streamlines over 1300 pages of complex and voluminous sentencing laws currently spread across multiple statutes.
The problem the Code seeks to fix is that the complexity of the law on sentencing has resulted in significant rates of error and delay. An analysis conducted in 2012 of 262 randomly selected cases in the Court of Appeal (Criminal Division) demonstrated that the complexity of the legislation is resulting in an extraordinary number of sentences that have been wrongfully passed. Of the sample of 262 cases, 36% involved unlawful sentences which the court should not have made.
Without a doubt, placing all the procedural sentencing law in one document will have far reaching benefits and the process has simplified and clarified sentencing procedural law in many ways. Care has been taken in the consolidation exercise to simplify language and draft the Code in a way to make the law more accessible, straight forward and easy to navigate. In the case of child sentence, for example:
- Sections 249 and 250 set out in a table the offences that trigger the power to impose long-term detention (formerly s 91 PCCSA 200).
- Section 251 then helpfully sets out the considerations for long-term detention and cross-refers the sentencer to the threshold for a discretionary custodial sentence (s 230), the procedure to be followed (ss 230(6)-(7)) which then refers the judge to the requirement for a pre-sentence report (s30).
This demonstrates the number and complexity of different sentencing provisions that have now been helpfully condensed into a single document.
The approach of the Sentencing Code is to achieve a “clean sweep”2 of sentencing procedural law, meaning that individuals convicted on or after 1 December 2020 will be sentenced according to the Sentencing Code irrespective of when an offence was committed. 3 Practitioners will have to be mindful of those limited cases where a person being sentenced is exposed to a larger maximum sentence under the Sentencing Code than was available at the time of the offence. This is particularly significant for those convicted as children who are being re-sentenced. The principle is that when a court is re-sentencing a person who was convicted and sentenced as a child (aged under 18 on the date of conviction) it has the powers of the original sentencing court.
This has two key effects: (1) the law that applies is the law as it stood on the date of the original sentencing exercise (rather than the law as it stands on the date of re- sentencing); and (2) the child or young person is re-sentenced as if they were still the age they were when originally convicted.4
This, however, requires the court to refer to old law. 5
The Law Commission highlighted the risk of injustice that can occur:
“The effect of being re-sentenced at age 18 by reference to the offender’s age at the re-sentencing hearing, rather than their age at conviction, could be to expose a person convicted as a child or young person to a custodial sentence … longer than would have originally been available.”6
It will therefore be particularly important that advocates in such cases ensure the correct law is applied and that sentencing courts appreciate that this will result in adults receiving child sentences.
Importantly, the Sentencing Code does not make any substantive changes to current sentencing law, it is intended to be a consolidation exercise. Existing maximum and mandatory minimum sentences remain unchanged. The Code does not reduce judicial discretion or replace existing sentencing guidelines. Rather, it seeks to simplify, clarify and consolidate procedural sentencing law into a single instrument in an effort to increase efficiency and reduce unlawful sentences being imposed.
The structure of the Code is designed to be user friendly and follow the sentencing process chronologically. Each area is set out in Parts, which are then divided into chapters and sections.
For children being sentenced, the Sentencing Code helpfully groups the provisions available for a person under 18 at the date of conviction (see Chapter 2 for example). This will go a long way to ensure lawful sentences are passed on children, particularly when read alongside the Sentencing Council’s Definitive guideline: Sentencing Children and Young People.
The structure of the code can be broadly summarised as follows.
- Part 2 contains pre-sentencing provisions including:
- Committal following summary trial for persons under 18;
- Committal for sentence following indication of guilty plea for youth offenders;
- Remission orders to youth court or other magistrates’ court for sentence.
- Part 3 is about court procedure when sentencing including:
- Information and pre-sentence reports;
- Derogatory assertion orders;
- Criminal courts charge;
- Duty to explain and give reasons.
- Part 4 is about the discretion a court has when sentencing including:
- Purpose of sentencing, including for offenders aged under 18;
- Sentencing guidelines;
- Seriousness and determining the offence;
- Aggravating factors, including if an offence involves a child;
- Mitigating factors.
- Part 5 is about absolute and conditional discharges.
- Part 6 is about orders relating to conduct including:
- Referral orders whereby offenders aged under 18 can be referred to a youth offender panel;
- Repatriation orders whereby for offenders aged under 18 can be ordered to make repatriation to for an offence to a particular person or persons or the community at large.
- Part 7 is about fines and other orders relating to property including:
- Limits on fines or compensation orders imposed on offenders aged under 18;
- Payment of fines or compensation orders by a parent or guardian of an offender aged under 18.
- Part 8 is about disqualification.
- Part 9 is about community sentences including provisions regarding youth rehabilitation orders.
- Part 10 is about custodial sentences including:
- Detailed provisions regarding detention and training of offenders aged under 18;
- Detailed provisions regarding detention of offenders aged under 21.
- Part 11 is about behaviour orders including:
- Sexual harm prevention orders;
- Restraining orders;
- Parenting orders requiring parents to attend counselling or guidance programmes as required;
- Binding over orders for parents or guardians of offenders aged under 18.
- Part 12 contains miscellaneous and general provision about sentencing.
- Part 13 deals with interpretation.
As can be seen by the above summary, provisions relevant to children are contained logically within the applicable Part of the Code.
Whilst the majority of procedural law is contained within the Sentencing Code, there remain certain sentences that remain outside of the regime. These include:
- Confiscation Orders under the Proceeds of Crime Act 2002;
- Disqualification of directors under the Company Directors Disqualification Act 1986;
- Disqualification Orders under the Road Traffic Offences Act 1988;
- Serious Crime Prevention Orders under the Serious Crime Act 2007; and
- Slavery and Trafficking Prevention Orders under the Modern Slavery Act 2015.
It is intended that the Sentencing Code is a single point of reference for procedural sentencing law. Where certain sentences that continue to be dealt with by separate enactments, the Sentencing Code contains “signposts”. Signposts are non-operative provisions that cross-refer a reader to relevant provisions in separate enactments.
The Sentencing Code is the result of a major consolidation exercise undertaken by the Law Commission and has widely been praised by judges, solicitors and barristers. The Code’s drafters have helped to ensure that children are more likely to receive lawful and proportionate sentences.
It is unfortunate that despite arguments advanced by the Howard League for Penal Reform, Garden Court Chambers and the Youth Justice Legal Centre during the consultation phase, the Code does not replace all references to those convicted under the age of 18 with references to “child” or an analogous phrase. It was argued that language describing children as ‘offender’ and ‘young offender’ serves only to “encourage the stigmatisation and criminalisation of children” and “reinforces a feeling of exclusion and discourages positive re-integration into society”.
The Law Commission’s The Sentencing Code, Volume 1: Report stated that
“7.35 Despite the force of the arguments advanced by the Howard League and Just for Kids Law it has not been possible in the Code to replace all references to those convicted under the age of 18 with references to “child” or an analogous phrase. Although superficially straightforward, such an approach throws up a number of technical drafting difficulties…”
The Law Commission recommended that the Government consider whether the word “child” or an analogous phrase should be used when referring to persons convicted under the age of 18 in future legislation, and whether the Sentencing Code should be amended to adopt such language. 7
The government has responded positively in a letter from the Lord Chancellor:
“under 18s are different to adults and it is important to take that into account during sentencing. We would be happy that, where possible, future Ministry of Justice legislation should refer to persons under the age of 18 as “children”. When we are in a position of amending or creating legislation, we will consider this approach in conjunction with other government departments.”
Written by Kate Aubrey-Johnson and Michelle Gordon
Kate is a barrister at Garden Court Chambers
Michelle Gordon is an Associate at Paul Hastings (Europe) LLP
- s2 The Sentencing Act 2020 (Commencement No. 1 (back)
- Ministry of Justice (22 October 2020) Sentencing Code granted Royal Assent. https://www.gov.uk/government/news/sentencing-code-granted-royal-assent (back)
- s2 Sentencing Act 2020 (back)
- See R v Ghafoor  EWCA Crim 1857,  1 Cr App R (S) 84. (back)
- Law Commission Sentencing Code Report para 7.8 & 7.11 (back)
- Law Commission Sentencing Code Report para 7.10 (back)
- see The Sentencing Code Vol 1 Report No 372, para 7.38 and Recommendation No 5. (back)