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The Law Commission sentencing code project

The Government in 2014 asked the Law Commission to consolidate the law relating to sentencing. This was prompted by concerns that the complexity of the current law contributes to a disproportionate number of errors and unlawful sentences being imposed, resulting in delays and an unnecessary number of appeals. This complexity also makes it difficult for the public to understand the law which affects public confidence in sentencing.

The Law Commission consulted on the issues and in November 2018 published a report and two draft bills, a Pre-consolidation Amendment Bill and a Sentencing Code Bill and recommended their enactment. A short summary of the report is available. The Government accepted the Law Commission’s principal recommendations.

The sentencing code would consolidate all the existing legislation governing sentencing procedure. It has been designed by the Law Commission to make the law on sentencing procedure comprehensible and accessible. The code will not change the substance of the law, such as by changing maximum sentences; it will re-enact the law already in force in a more logical framework. A consolidation bill containing the sentencing code, the Sentencing Bill [HL] 2019-21, was introduced to the House of Lords on 5 March 2020.

The code would introduce a new approach to dealing with amendments to sentencing law. The Law Commission have called this approach the “clean sweep”. This will remove historic layers of legislation. All offenders convicted after the code comes into force will be sentenced according to the most up to date law with some limited exceptions. These exceptions will protect the fundamental rights of an offender not to be subject to retroactive punishment.

The code has received widespread support, including from legal practitioners, judges and academics.

In the future it is intended that all changes to the law on sentencing procedure will be made by amending the sentencing code itself. It is hoped this will bring clarity to the law.

The Bill

Before the sentencing code can be enacted as a consolidation bill there is a need for “paving provisions” to be passed in another bill, the Pre-consolidation Bill, which has two main elements:

  • It would remove historic layers of legislation and give effect to the “clean sweep”; and
  • It would make changes to the existing law of sentencing procedure to enable the consolidation in the code to take place.

The Pre-consolidation Bill is a Law Commission Bill and so is subject to a special procedure.

The majority of the Pre-consolidation Bill extends to England and Wales only. Annex A of the Explanatory Notes sets out the exceptions.

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