Mon, 01 Feb 2021
At the start of December, we observed a consolidation of the sentencing procedure law into the Sentencing Act 2020. The Sentencing Code now applies to all convictions both on or after 1st December 2020, irrespective of when or at what time the offence was committed.
The Sentencing Code provides a clear direction in relation to over 50 pieces of legislation and directs that a sentencing exercise ought to be resolved by way of the Act along with any other relevant council guidelines and procedure rules. Where concerns are raised regarding the implementation of harsher sentences, the sentencing code has already codified and adopted the older or less-harsh provision. As such, it is apparent that the court will benefit from not being required to reference the older versions of legislation. As a consequence of the way in which older legislation has been adopted and the drafting of the sentencing code, there ought to be no basis that proceedings could be challenged under Article 7 of the Human Rights Act 1998.
Where an individual is required to be resentenced following breach proceedings, slip rule hearings, or appeal hearings, the Code will not apply. The court will retain the power that the original sentencing court had, as if the defendant were pleading or following a finding of guilty on that day.
All parties will be aware that the Sentencing Code does not affect the minimum or maximum terms of imprisonment. It is merely designed to assist all parties by codifying previous statute into a legible and comprehensive format. On closer analysis, counsel and those passing sentence are encouraged to analyse the particular requirements of the Sentencing code which provide a positive requirement on individuals to undertake certain considerations or requirements. For example, under s143(3) of the Criminal Justice Act 2003, when considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor. However, under s64 of the Sentencing Act 2002 when considering the seriousness of any offence committed while the offender was on bail, the court must (a) treat the fact that it was committed in those circumstances as an aggravating factor and; (b) must state this in open court. Counsel are encouraged to consider the schedule of changes made to sentencing guidelines and related materials for further assistance.
When considering the Sentencing code, all practitioners must take into consideration that the Sentencing Act does not take into account every disposal available to the court but does signpost issues relating to other disposals available. The Act currently excludes a number of disposals including:
a) Reference of the provisions of the Road Traffic Act;
b) Confiscation proceedings under POCA 2002;
c) The releasing of offenders from custody;
d) References and intervention by probation;
e) License arrangements or provisions;
Counsel will find that those drafting the Sentencing Act have provided a table to assist the ‘pre-code law’ with the current ‘code law’. The Code does not conflict with the guidelines, however it may be amended in the future following the natural changes and progression of case law and statute.
For further guidance please consider the following documentation provided by the sentencing council: