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The Sentencing Code: Order out of Chaos

INTRODUCTION

For the vast majority of the practising lives of most lawyers specialising in crime, the provisions relating to sentencing have been a source of constant complaint: multiple statutes, sometimes amended before they came into effect, often seem designed to make accessing the law, and working out which provisions actually apply, as difficult as possible. Commencement dates are often hidden in obscure statutory instruments, which themselves are opaque, and some provisions are never brought into effect.

Anything to make the provisions more accessible to all involved in having to administer them is to be welcomed, and so the Sentencing Bill, which is currently going through Parliament, with 1st October, 2020, as its effective commencement date ( Covid permitting ), which is designed to pull all sentencing provisions[1] together into a Sentencing Code, deserves a suitable round of applause, assuming that it makes its way through the parliamentary procedure relatively unscathed.

It is important to note, however, that the Sentencing Code is not designed to make changes to the substantive law.  It is a codifying provision and so matters such as maximum and minimum sentences, for example, will not be affected.  Sentencing powers / requirements which may have been thought by some to be ill-judged , ineffective or counterproductive will remain in force.

And although the Code provides a route map through sentencing provisions, that they remain a veritable thicket can be gauged by the fact that the Bill contains 420 clauses, together with no less than 29 schedules – a total of 569 pages of legislative provisions.

On any view, this is a significant piece of work.  It is designed to be used in conjunction with the Criminal Procedure Rules and the Sentencing Council Guidelines.

It is not the purpose of this article to examine the Code in detail.  What will be considered is the structure of the Code and how it operates, looking at particular examples which illustrate its workings.

THE STRUCTURE OF THE CODE

The Code is set out in groups of parts, each part then divided into chapters and sections or clauses.  As stated, they cover the whole of the sentencing process for the vast majority of cases.  The first group of parts deals with general provisions, as opposed to particular types of sentence.  Thus, amongst the topics which can be found are those which need to be considered before any particular sentence is itself considered.  In order of appearance, these are:

  • Deferment of sentence ( now to be called a Deferment Order ).
  • Committal for sentence.
  • Remission to Youth Court or Magistrates’ Court.
  • Information and reports.
  • Derogatory Assertion Orders.
  • Criminal Courts Charge.
  • Duty to explain and give reasons for sentence.

Part 4 sets out, at clause 57, the purposes of sentencing. As a codifying provision, these replicate those which appear in s.142, Criminal Justice Act, 2003.  It is clearly a significant advantage not to have to dive off into one of the numerous Criminal Justice Acts to find such a provision.  Part 4 then goes on to deal with:

  • Sentencing Guidelines
  • Seriousness and determining sentence
  • Aggravating factors
  • Mitigating factors

Having dealt with these general considerations, the Code, in its third group of parts, then goes on to deal with the various specific disposals available to the court, setting them out in roughly ascending order of seriousness.  We will return to examine aspects of this later in this article.

The fourth group of parts deals with various other orders which are available to the courts:

  • Behaviour orders ( including Criminal Behaviour Orders and Sexual Harm Prevention Orders)
  • Binding over

The fifth group of parts deals with various miscellaneous matters, such as commencement and alteration of sentence and deportation orders.  It also provides for the review of sentence when assistance is, or is not, given to the police.

The sixth part contains the usual array of supplementary provisions dealing with powers to make Regulations, extent etc.  The most significant relate to:

  • Amendments to the Code
  • Commencement

Finally, a series of schedules make further provisions relating to specific orders and sentencing situations.  They are referred to in the specific clauses dealing with their subject matters, so they are simple to follow through from the governing clause.

COMMENCEMENT

Before looking at some of the provisions in more detail, so as to examine the way in which the Code works, it is important to consider the primary commencement date, as set out in Clause 416.  It is 1st October, 2020, and this is meant to provide what has been described as a clean sweep.  The Code will apply to all convictions recorded on or after the commencement date, irrespective of the date of the offence.  However, in order to ensure compliance with ECHR Art 7, if the offence was committed before the commencement date, an ancillary statute to the Code – The Sentencing ( Pre-consolidation Amendments ) Act, 2020 – provides that the punishment will not be more onerous than the sentencing provisions applying at the time of the commission of the offence.

There will thus be a period when Courts will be dealing with sentence where the date of conviction will mean that the pre-existing law will apply, but that should be a relatively short period and it should not lead to a different sentence in substance.

HOW THE CODE WORKS

By examining a number of provisions, we can see how the Code is designed to work and how it assists in identifying the relevant powers and considerations which govern the process in any given situation.

Deferring sentence was previously governed by ss 1 -1D Powers of the Criminal Courts ( Sentencing ) Act, 2000.  The Court, if it wishes to defer sentence, will now have to make a Deferment Order.  Clauses 3 to 13 set out the relevant provisions in relation to a Deferment Order, which largely replicate those of the pre-existing law.  What is set out in the new provisions is, in effect, a step by step guide, identifying:

  • The requirement to make an order, its purpose and requirements which may be made ( Cl.3 ).
  • When an order is available ( Cl.4 ).
  • Necessary preconditions for an order ( e.g. consent ) and formalities ( Cl. 5 ). NB, the maximum period of deferment, of which there can only be one, is 6 months.
  • The effect of an order ( e.g. consequences when appearing for sentence ). Failure to appear ( Cl.6).
  • Restorative justice requirements ( Cl. 7 ).
  • Appointment and duties of a supervisor for the deferment period ( Cl. 8 ).
  • Failure to comply with terms ( Cl. 9 ) and commission of further offence during the deferment period ( Cl. 10 ).
  • Powers of the court on sentence after deferment ( Cl.11 ).

Committal for Sentence.  The way in which these provisions ( Cl s.14- 24 ) provide a good example of the structured way in which the Court is guided.  As with other sentences, it sets out the differing powers and requirement when dealing with adult offenders and those under 18.  It sets out, for example, how to deal with dangerous offenders in each age bracket.

Similarly, by Cl. 22, it sets out the powers of the Crown Court on committal for persons under the age of 18.

Each circumstance in which a committal for sentence can be made is identified, and the powers and duties set out.

Reports.  Cls. 30-37 deal with the obtaining of reports:  when they must be obtained, to whom they must be provided, and, in relation to pre-sentence reports, who may provide them.  Again, they mirror the current powers of the courts and allow for the usual exceptions where the court considers the obtaining of the report to be unnecessary.

Cls. 35-36 provide for the making of Financial Circumstances Orders following conviction or the indication of a guilty plea, and for an offence of failing to comply with such an order ( or providing misleading information ), providing for a period of up to 2 years after the offence for charges to be brought.

The final Clause in this Chapter, Cl. 37, provides a good example of the way in which the Code assists by directing the reader to provisions set out outside the code itself.  This is repeated in various parts of the Code and is very welcome.  In the case of Cl. 37, it identifies other parts of the Code, and other statutory provisions, which relate to the obtaining of reports in particular circumstances ( e.g. remand in hospital for a report on mental state under s. 35 Mental Health Act, 1983 ).

Custodial sentences. Cl. 221 is the opening clause of this Part of the Code and, again, its contents exemplify the compendious nature of the approach.  It starts off as follows:

“ (1) This Chapter applies generally for the purposes of determining whether a custodial sentence should be passed and, if so, what its terms should be .”

It then proceeds to do what it says on the tin. The Code then, in sequence;

  • Defines a custodial sentence.
  • Identifies circumstances where a custodial sentence is not available or is subject to restrictions.
  • Informs the court of how to decide whether to impose a custodial sentence and the terms of such a sentence.
  • Sets out, in Chapter 2, the various custodial sentences for offenders under 18 ( Cls. 233-259 ).
  • Moves on to offenders of 18-20 years of age ( Cls. 260-276 ).
  • Goes on to deal with sentences for offenders over 21.

The methodology adopted in this part of the Code is interesting.  Chapter 4 sets out various matters which relate to particular issues, before the succeeding chapters go on to deal with specific types of custodial sentence.  Thus, for example, Cl. 277 sets out general provisions relating to suspended sentences orders ( e.g. minimum and maximum terms ) and describes them in terms of the availability of such a sentence.  Thus, the reader can identify the parameters of a suspended sentence order before having to go on to consider more granular details.  To do so, the clause directs the reader to the relevant part of the Code ( Chapter 5 ).  This clear signposting is a welcome part of the Code and will be of significant assistance in promoting clarity.

Chapter 5 then sets out the details of how suspended sentence orders operate.  Cl. 286 defines that such a sentence means that the sentence of imprisonment or detention will not take place unless the court orders it to do so after, “ An activation event occurs.”  What is an activation event?  It is simply that which one would recognise from the pre-existing law and practice given this new nomenclature.

Again, the Code then considers matters such as community requirements to be attached to a suspended sentence order.  The available orders are set out in a community requirements table.  This is set out in Cl. 287, which then directs the reader to the relevant provisions of Schedule 9 of the Code, identifying which part of the Schedule relates to each requirement.  As suggested earlier, this constitutes a very helpful route map.

THE SCHEDULES

As can be seen from the above example, the reader is directed to the appropriate Schedule by the relevant part of the Code.  Some of the Schedules are rather meaty, running to 17 parts in the case of Schedule 6, which deals with Youth Rehabilitation Orders, but they are set out in a clear and structured way.

Schedule 22, however, is a sting in the tail.  It includes a list of prospective amendments in the Code, to be brought into effect by SI, under Cls. 408 and 417.  This includes some fairly significant provisions.  For example, Cl. 58, which is currently a 2 sentence provision headed Offenders aged under 18: considerations of court not affected by Code, is to be replaced, at some stage, by a page long substitute headed Purposes etc of sentencing: offenders under 18.  It may be that there is a technical reason for this approach[2], but there is a danger that, unless amendments are incorporated into the published version of the Code as soon as they are made, confusion may arise.

Schedule 23 sets out a lengthy list of matters in relation to which the Secretary of State may make amendments by SI.  This provides flexibility, but time will tell how efficiently amendments are made and how quickly they are incorporated into the published text of the Code.  It should be said that the Code is envisaged as being a living document.  There is thus a high requirement upon the government to ensure that this is achieved by ensuring that the published text is, as suggested above, up to date and accurate.

CONCLUSION

This is, as stated, a welcome step, and an important one.  The very exercise of codification is a complex and substantial one, and those who have driven it through are to be congratulated.  It will be essential for all criminal practitioners to familiarise themselves with it and to understand its relationship with both the CPR and the Sentencing Guidelines.  It is worth stressing, again, however, that the benefits to be derived from this hard work will be very much reduced unless all amendments are swiftly incorporated when made.  Technical problems with sentences should be reduced because all the necessary materials are here, in one place, and readily accessible.

One expresses the hope that the Code will not be mauled in any way during the parliamentary process, with attempts at ill-considered amendments.  As a codifying statute, this is likely to be avoided, so practitioners need to get to work familiarising themselves with the Code well before 1st October.

 

Alistair S. Webster Q.C.

                                                                        July, 2020

[1] With limited exceptions such as confiscation and road traffic sentences

[2] These relate, it is understood, to provisions which have been enacted in other legislation, but not yet brought into effect.  What may be regarded as an abysmal example is s. 154, Criminal Justice Act, 2003 ( 12 month sentences in the Magistrates’ Court ) which has remained on the statute book, but not implemented, for 17 years to date.