*/
Commissioner for Criminal Law
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
Rawdon Crozier is a barrister at KBG Chambers, Plymouth, specialising in property law. He is a member of the Counsel editorial board, writes for several legal journals and also writes poetry. In 2015 he went straight from Arnold v Britton [2015] UKSC 36 in the Supreme Court to starting chemotherapy and ‘got the right result in the latter’.
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
Commissioner for Criminal Law
The Bar Council is ready to support a turn to the efficiencies that will make a difference
By Louise Crush of Westgate Wealth Management
Marie Law, Director of Toxicology at AlphaBiolabs, examines the latest ONS data on drug misuse and its implications for toxicology testing in family law cases
An interview with Rob Wagg, CEO of New Park Court Chambers
What meaningful steps can you take in 2026 to advance your legal career? asks Thomas Cowan of St Pauls Chambers
Marie Law, Director of Toxicology at AlphaBiolabs, explains why drugs may appear in test results, despite the donor denying use of them
Ever wondered what a pupillage is like at the CPS? This Q and A provides an insight into the training, experience and next steps
The appointments of 96 new King’s Counsel (also known as silk) are announced today
Ready for the new way to do tax returns? David Southern KC continues his series explaining the impact on barristers. In part 2, a worked example shows the specific practicalities of adapting to the new system
Resolution of the criminal justice crisis does not lie in reheating old ideas that have been roundly rejected before, say Ed Vickers KC, Faras Baloch and Katie Bacon
With pupillage application season under way, Laura Wright reflects on her route to ‘tech barrister’ and offers advice for those aiming at a career at the Bar
