The Sentencing Act 2020.

18 December 2020

The Background

In November 2018, the Law Commission identified that the law on sentencing was inefficient, overly complex, and lacked transparency, and put forward a draft sentencing proposal. The overriding objective of the proposal was to create one statute encompassing all sentencing law into a single Act.

The resulting Sentencing Bill was introduced to Parliament on 21 January 2020, and Royal Assent was granted on 8 June 2020. The new Sentencing Act 2020 came into force on 1 December 2020, and applies to all defendants convicted after that date. The Act is made up of 14 Parts and 29 Schedules. Parts 2 to 13 of the Act make up the Sentencing Code, which sets out procedural matters and sentencing principles and disposals ranging from discharges to life sentences.

It is anticipated that the Code will create significant savings in terms of both cost and delay, including an estimated £255 million saving in appeals against sentence in the next decade. Although the Code is a major piece of consolidatory work, it does not include certain common law matters such as Goodyear directions, or specialised legislation such as the Road Traffic Act 1988 or Animal Welfare Act 2006. There are also a few fundamental matters that remain unaffected. The Code does not:

  1. Affect statutory maximum sentences for criminal offences;
  2. Create an increased penalty than could have been imposed at the time of the offence;
  3. Extend minimum sentence provisions or indeed alter minimum sentence tariffs;
  4. Affect judicial discretion; or
  5. In any way replace or affect the Sentencing Council’s sentencing guidelines. 

Key benefits of the Code

Simplification: The main benefit is, of course, the simplification of the sentencing process by drawing together all previous sentencing legislation into a single statute, in accordance with the Law Commission’s overriding objective. Collating the many pieces of disparate legislation into a single Code involved bringing together more than 1300 pages of law spread between 65 different Acts of Parliament, and making 189 consequential amendments to previous Acts. This makes it much easier to find the correct, relevant legislation and should lead to more accurate, fairer sentences.

For example, the law surrounding mandatory minimum sentences has historically been piecemeal. The provisions for minimum sentences were previously found in four separate Acts of Parliament, and have now been consolidated within the Code and the old legislation repealed. A quick glance at the table below, setting out the parts of the Code and corresponding previous legislation relevant to minimum sentences, is sufficient to show the streamlining effect of the consolidation exercise:

Offence Previous legislation Code
Firearms offences S51A Firearms Act 1968, S5 Firearms Act 1968, S287 CJA 2003 Sch 20, S311
Bladed article offences S1 Prevention of Crime Act 1953, S139 CJA1988, S139A CJA 1988

S312, S315

Third drug trafficking offence S110 Powers of Criminal Courts (Sentencing) Act 2000 S313
Third domestic burglary offence S111 Powers of Criminal Courts (Sentencing) Act 2000 S314

A wide spectrum of ancillary orders and general powers, which have been known to cause much head-scratching and feverish researching at court, are also consolidated. Of particular use is Part 11, detailing the procedure for behaviour orders including CBOs, SHPOs, protection from harassment orders, and parenting orders. Financial orders, including compensation, forfeiture, and deprivation, are dealt with in Part 7. Although the Code does not deal with matters codified in the Road Traffic Act 1988, Part 8 deals with disqualification. It consolidates the various powers set out in the Powers of Criminal Courts (Sentencing) Act 2000. It also clearly explains the impact of imposing a disqualification along with a custodial sentence, a matter which is frequently overlooked or mishandled, resulting in additional corrective hearings under the slip-rule.

Dynamism: The Code is a dynamic, living document that can be easily updated as and when future amendments are made. Practitioners and judges will have the most up-to-date law at their fingertips, saving the time and effort previously needed to research and piece together new and existing law.

Transparency: The Code has been drafted in simple, modern language to make justice both more accessible and more transparent to a range of audiences including the general public as well as practitioners and judges.

Structure: The Code is set out in a user-friendly and logical order, following the natural chronological order of a sentencing hearing. This makes it easier for counsel and judges to find the relevant parts, and properly consider and prepare sentence, reducing the possibility of error or oversight of key provisions.

Cross-referencing & Signposting: Having consolidated the many disparate pieces of sentencing legislation, the Code actively directs the sentencer towards other relevant parts, ensuring that nothing of importance is overlooked. For example, s251 sets out the considerations for imposing a sentence of detention on a youth. The sentencer is referred to s230, which sets out the threshold and procedure for a discretionary custodial sentence, which in turn refers the reader to s30, which addresses the requirement for a pre-sentence report. The Code also signposts readers to separate enactments, not contained within the Code, that deal with specific offences.

The Clean Sweep: The “clean sweep” mechanism means that a person convicted of an offence will be sentenced according to the most recent legislation, regardless of the date of offence. The exception to this is where this would have the effect of subjecting the defendant to a more severe sentence under the Code than could have been imposed at the date of commission of the offence, or where Article 7 would be breached. This effectively removes the need for extensive research into decades-old legislation, for example in historic sex cases, and negates the corresponding risk for error, leading to a safer sentence.

Youth Justice: This is a notoriously technical area of law, yet one which is critical to get right due to the age and vulnerability of youths in the criminal justice system, as well as the aims of youth sentencing. The Code helpfully provides a step-by-step guide of youth justice considerations, for example Youth Referral Orders and Rehabilitation Orders are set out in Part 6 and Part 9 respectively, and Part 10, dealing with custodial sentences, sets out the separate considerations for offenders aged under 18 and offenders aged under 21. This should assist greatly in clarifying youth justice procedure, which, lacking a clear single point of reference, can so often feel impenetrable and somewhat arbitrary.

In conclusion

The Code is a document full of promise which it is hoped will modernise and streamline the sentencing process. It will save vast amounts of time and cost, and is expected to reduce the number of errors and consequent appeals. Increased transparency and openness can only be a good thing at every level, whether for the anxious defendant, the stressed victim, or the wider public. Above all, it will lead to greater accuracy and fairness, and hence increase public faith in our country’s criminal justice system.

Clea Topolski.
Libby Anderson.
Related specialisms.