• Moderator Robert O’Sullivan QC, Law Reform Committee, 5 Paper Buildings
  • Speakers Sir David Bean, Chairman, the Law Commission; Professor David Ormerod QC, Law Commission

The Law Commission’s project to consolidate and codify criminal sentencing within a single act is one of the most ambitious it has undertaken and among other things could make a significant reduction in the workload of the Court of Appeal Criminal Division, explained Professor David Ormerod QC, introducing the proposed ‘clean sweep’ of sentencing.

Rather undersold by its title and, ironically, competing with the Brexit session, ‘Challenges and Opportunities in law Reform’ was less well-attended than it deserved to be and it was fascinating. Primary legislation covering criminal sentencing currently runs to 1,300 pages, with some legislating dating as far back as 1361 (the Justices of the Peace Act, in case you wondered). The result is that the sentencing exercise is complex and unclear, particularly where offences span a wide time frame. It wastes time in preparation and in court and a study by Robert Banks of 262 cases in the Court of Appeal Criminal Division found 96, that is 36%, involved unlawful sentences. The Law Commission concluded that the only solution would be to bring all the legislation into a Sentencing Code in a single Act, which, save for a few limited exceptions, would apply the current law to all cases where the offender is convicted after it comes into force.

Article 7, Professor Ormerod explained, is only a ‘weak right’ guaranteeing primarily no increase to the maximum sentence an offender could have received at the time of the offence, not to the sentence the offender might historically have expected to receive. Exceptions were thus required only for increases in maximum sentences and subsequently imposed minimum sentences. The Law Commission’s first task was to identify all the sentences court can currently impose, a marathon piece of research, which resulted in an interim report, produced in 2016, ‘Sentencing Law in England and Wales: Legislation Currently in Force’.

The report was then used by, amongst others, the CPS to check that all the legislation currently in force and its effects had been correctly identified and, happily, for the most part it had. The Sentencing Code has now been drafted and is open for a consultation which ends early next year. Since it is for the most part consolidating legislation it can be introduced via the accelerated procedure; only two clauses of substantive legislation, which have already been drafted are required and these can be inserted in any convenient criminal justice bill. The Sentencing Code could be in force as early as 2019. There is just one problem (and I should make it clear this is my and not Professor Ormerod’s summation of it) for the first time in ages the government has lost its legislative incontinence in the field of criminal justice; there are no suitable Bills on the books and not likely to be while Brexit dominates Parliament. For more information see: bit.ly/2iGIO1Q