BLOG: A Code to Joy: the Sentencing Act 2020

Anthony James, pupil barrister, reviews the provisions of the Sentencing Code, which came into force on 1 December 2020 and promises to simplify the multiple sources of legislation in this area.

The Sentencing Act 2020 [“the Act”] applies to all offenders convicted of an offence on or after 1 December 2020[1] and establishes the “Sentencing Code” [“the Code”]. Large parts of the Act codify and restate established legal positions. Therefore, it is important for all practitioners to get to grips with the new regime as soon as possible.

A sequential road map

The Code adopts a seemingly novel and highly intuitive structure, taking the user through the sentencing process.

Part 2[2] deals with powers exercisable before passing sentence. Importantly, this includes the consolidation of the minefield of provisions found in the Powers of Criminal Courts (Sentencing) Act 2000 (“PCC(S)A 2000”). Part 2 also creates new nomenclature in the form of a Deferment Order,[3] consolidating s. 1 of the PCC(S)A 2000.

Part 3[4] then deals with general procedure for sentencing, including reports and surcharges.

Part 4,[5] entitled ‘exercise of the court’s discretion’, outlines the somewhat nebulous purposes of sentencing and essentially the content of the Sentencing Council’s General Guideline: Overarching Principles.

Parts 5 – 11[6] set out all of the possible disposals available to the court in what appears to be ascending order of seriousness, starting with absolute and conditional discharges, and continuing through to community sentences, before ending with custodial sentences.

Part 12[7] deals with miscellaneous provisions about sentencing such as commencement and alteration of sentence.

The focus of Part 13[8] is interpretation. Part 14[9] contains supplementary provisions on amendment to the Act, the armed forces and British overseas territories which some practitioners will doubtless spend much time analysing but which is somewhat beyond the scope of this analysis.

The Act has no less than 29 Schedules and the tome runs to 570 pages in total.

Some points to note

The Act contains signposting to other legislation. An example arises as within s. 171. Such provisions do not re-enact the old law but simply refer the reader to the previous provisions:

1. 171 Offences relating to animals

(1) For orders relating to disqualification and licensing in the case of offences under the Animal Welfare Act 2006, see the following provisions of that Act—

(a) section 34 (disqualification);

(b) section 42 (orders with respect to licences).

(2) See section 4 of the Dangerous Dogs Act 1991 for orders relating to disqualification in the case of offences under that Act.

Therefore, when dealing with such sentences, the applicable statute remains the Animal Welfare Act 2006, and s. 171 of the Act is its signpost.

The benefit is that the relevant sentencing provision is still contained with other similar sentencing provisions in one place.

It is clear that the aim is to reduce mistakes on the part of practitioners and the judiciary and demystify the process for all involved.

Another feature of the Act is that the sentencing for adults over 21, adults under 21 and juveniles is codified in a single source. Part 10 on custodial sentences, for example, lists the possible custodial disposals for an offender under 18 in chapter 2, chapter 3 contains those for an adult under 21 and chapter 4 comprises the disposals for an adult over 21.  For practitioners dealing with matters in the Youth Court, this is an important feature of the Act.

No change

The Act does not effect any substantive changes and does not curtail existing judicial discretion in sentencing, nor does it alter maximum sentences. The status of sentencing guidelines published by the Sentencing Council remains unchanged.

There are matters ancillary to sentencing that are not addressed. There include:

• Forfeiture – s. 160 of the Act which contains a definitive table of possible orders in other Acts;
• Confiscation – s. 161 of the Act;
• Disqualification orders under the Road Traffic Act 1988 and for company directors – ss. 170 and 172.

Some matters of procedure are also not included such as the procedure for appeals against sentence, Newton hearings, and Goodyear indications.

Clean sweep

The commencement provision of the Act makes clear that it applies to all offenders convicted on or after 01 December 2020.[10] This provision attempts to address the Law Commission’s concerns that confusion has frequently arisen in sentencing, as amendments can commence by reference to a number of different events whether that be the date of conviction, the date of commission of the offence or the date on which proceedings started.

Therefore, the provision effects a “clean sweep” by applying to all current and future proceedings which have not yet resulted in conviction, irrespective of the date of the commission of the offence.

There is, however, one notable caveat. Any punishment cannot be more onerous than that which was available at the time of the commission of the offence. Therefore, it may be necessary to have this in mind, especially with the current backlog in cases where many convictions after 1 December 2020 will be the result of offences committed before the commencement. However, considering the lack of substantive amendments, this is unlikely to be a major concern at least for the time being.

Practitioners should also be aware of this when dealing with breaches of community orders or suspended sentences, as the relevant time is conviction. Therefore, the old law will apply even if a new disposal of the case is ordered after 1 December 2020.

A Welcome Change

The Act is a welcome change for all involved in sentencing. There is now a single source for identifying the underlying powers courts have when dealing with sentence. Furthermore, the “clean sweep” will largely remove the need to refer to historic legislation when older offences come before the courts, with the limited exception identified above.

For the system as a whole, mistakes in sentencing exercises should hopefully be significantly reduced. The Court of Appeal (Criminal Division) received 3,356 applications for leave to appeal against sentence in 2018-2019, a significant proportion of which dealt with unlawful sentences. Treacy LJ, the then Chairman of the Sentencing Council, made the following comments in R v Maxwell [2017] EWCA Crim 1233 which is illustrative of the Court’s concerns in such cases:

46. The problems which have arisen are not untypical of what happens if insufficient attention is given to detail in the lower court. The problems arise from the complexity of modern sentencing legislation, but that phenomenon is well-known and all involved in the Crown Court should therefore be alert to the need for care in technical matters. Sentencing judges who have the primary responsibility for getting things right are often burdened with long sentencing lists. They have a right to expect appropriate assistance from the advocates before them.
47. It is clear that no such consideration or assistance was given by the advocates in this case, either before the judge came to sentence or indeed after he had sentenced in a flawed manner in a number of respects, or had failed to pass sentence on certain matters at all. Both counsel have apologised to this court for their part in the failures below, but that is small recompense for the disproportionate time and effort involved in correcting errors which should never have taken place. We can only urge greater vigilance on the part of all those involved in sentencing before the Crown Court.

Practitioners, who have on occasions borne the brunt of sentencing mistakes, will now be able to largely rely on one statute when dealing with sentencing in the future, which all will welcome.

Anthony James is a first-six pupil at Carmelite Chambers currently under the supervision of Ben Hargreaves. He is looking forward to accepting his own instructions from April 2021. He is a Lincoln’s Inn and Advocacy Scholar. Prior to pupillage, he volunteered with various post-conviction charities including the California Innocence Project, working on appeals against both sentence and conviction.

[1] The Sentencing Act 2020 (Commencement No 1) Regulations 2020, SI 2020/1236, reg 2.

[2] Sentencing Act 2020, ss. 3 – 29.

[3] SA 2020, s. 3(1).

[4] SA 2020, ss. 30 – 56.

[5] SA 2020, ss. 57 – 78.

[6] SA 2020, ss. 79 – 379.

[7] SA 2020, ss. 380 – 396.

[8] SA 2020, ss. 397 – 406.

[9] SA 2020, ss. 407 – 420.

[10] SA 2020, s. 2(2).