27 March 2021
Written by: Christiane Rabenstein, PNLD Legal Adviser
Not reviewed after the date of publication
On 1 December 2020, the Sentencing Act 2020 came into force. Its aim is to consolidate the law of sentencing procedure into one single Act, thereby making it more transparent and accessible. This article, written by PNLD Legal Adviser Christiane Rabenstein, explains the background to this Act and examines some of its main features and its relevance to the police.
It may not come as a surprise that when the Law Commission compiled all existing provisions dealing with sentencing that were included in a large number of pieces of legislation into one document, this came to well over 1,000 pages. While some sentencing law was included in Acts such as the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003, provisions could also be found in the Theft Act 1968, the Firearms Act 1968, the Modern Slavery Act 2015 and the Space Industry Act 2018, to name but a few, and in Acts specifically dealing with one particular sentencing issue, such as the Assaults on Emergency Workers (Offences) Act 2018, which provided for aggravated sentences where certain offences are perpetrated against such workers. Enactments such as this and almost annual amendments to legislation had led to a system too complex and difficult to find and understand. More surprising, and worrying, is the fact that a study had found that over a third of sentences considered by the Court of Appeal involved an unlawful sentence.
The Law Commission had therefore taken the existing sentencing law and put it into a draft that has since become the Sentencing Code. As for the term ‘Sentencing Code’, this is not a separate piece from the Sentencing Act 2020, but parts 2 to 13 of this Act. The remaining provisions of the Act are introductory and supplementary provisions, as well as amendments. So where you see a reference to a particular section of the Sentencing Code, this is a reference to that section of the Sentencing Act 2020.
It is expected that the new Act will reduce the number of unlawful sentences being handed out and save £250 million over ten years. As Max Hill, the Director of Public Prosecutions, stated: “This … will enable all who are involved in criminal justice to read the relevant provisions clearly and, for the first time through the clean sweep mechanism, in one place. The Bill therefore marks a significant leap forward and is to be welcomed.” The ‘clean sweep’ he is referring to means that anybody who has been convicted of an offence on or after the 1st December 2020 when the Act came into force will be dealt with under this Act, so that even for non-recent offences, it is not necessary to dig out otherwise repealed historic layers of legislation; and the Act includes provisions to ensure that no offender is sentenced to a more severe penalty than would have applied at the time the offence had been committed, e.g. where a maximum penalty has been increased since.
What the Act does – and does not - do
Firstly, the Sentencing Act 2020 does not create any new offences, nor does it provide or alter penalties for existing ones. These can still be found in specific legislation and normally the type of penalty, e.g. a fine or a term of imprisonment, as well as the maximum penalty of an offence, is provided for in the enactment that creates the offence.
Secondly, the Act does not alter any existing sentencing law. While Parliament may decide later to change sentencing law, the Sentencing Act 2020 consolidated the law as it was at the time by bringing it together in one piece of legislation, but it did not create new powers or change existing ones. It is expected that any future changes to sentencing law will be made to this Act, thereby ensuring that it can also easily be accessed and understood.
Thirdly, the sentencing guidelines and other work of the Sentencing Council remain unaffected by this Act.
What the Act does do, is provide all sentencing procedural law in one place, in a logical order and in simpler terms. The Act itself contains a section ‘overview’ (section 1), which sets out the structure of the Act; and then lays out the sentencing law in the same way as a case proceeds at court, beginning with the powers that are available to the court before passing sentence. All orders that are available to a court are provided for, such as reparation orders and financial orders, and also driving disqualification orders, youth rehabilitation orders, community orders etc. The Act deals with fines and sentences of imprisonment, and applies to the sentencing of adults as well as to young offenders. For the complete content please refer to the Act itself as this is beyond the remit of this short article.
Although the Act aims to consolidate all sentencing law, a few subjects have not been included so it will still be necessary to refer to a few other pieces of legislation, for example, to the Road Traffic Act 1988 for road traffic offence specific orders, the reason being that that Act is already a self-contained Code governing sentencing in road traffic offences specifically. As courts are accustomed to applying it, the Law Commission did “not want to unnecessarily disrupt an established body of law”. Another exception is the law on confiscation as contained in the Proceeds of Crime Act 2002.
Why is sentencing relevant to the police?
So why is the Act itself, and sentencing in general, of importance to the police?
While sentencing may not be the first issue in the mind of a police officer investigating an offence, there are a number of matters where taking the impact on sentencing into consideration at an early stage can help not only in achieving a conviction, but a sentence appropriate to the behaviour in question, often a more severe sentence.
The Assaults on Emergency Workers (Offences) Act 2018 has been mentioned above. Its provisions can now be found in sections 67 and 68 of the Act: where any of the offences listed there, which include assault, wounding and threats to kill, have been committed against an emergency worker acting in the exercise of functions as such worker, the court has to treat this as an aggravating factor; and it is important to know that this also includes cases where the person is not at work but carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.
Section 69 of the Act provides that if a specified offence has a terrorist connection, this is an aggravating factor. This is important where persons are convicted of offences other than those under the terrorism legislation but where the offence is connected with terrorism, for example an explosives-related offence (see Schedule 1 to the Act). The terrorist connection is making the offence a more serious one, and if the court determines that the offence has such connection, this must be treated as an aggravating factor; but for the court to do so, it must have relevant evidence. It is therefore important to gather evidence of such a connection, even where it is not required to prove the actual offence, such as causing an explosion. This is even more significant, as the notification requirements in the Counter-Terrorism Act 2008 will then also apply (see section 42 of that Act). The notification requirements will therefore not only apply on conviction for one of a number of terrorism offences listed in section 41, but also to any offence listed in Schedule 1 to the Sentencing Act 2020 where the court has evidence of a terrorist connection.
Other examples of where it is necessary to gather evidence, not just to prove the offence itself, but also to prove any circumstances which might lead to a different sentence, are further aggravated sentences. While sections 29 to 32 of the Crime and Disorder Act 1998 set out racially or religiously aggravated offences, section 66 of the Sentencing Act 2020 provides that the court must treat the fact that an offence is aggravated by hostility (listed as racial hostility, religious hostility, hostility related to disability, to sexual orientation or to transgender identity) as aggravating factors; therefore, words uttered during the commission of an offence can become even more relevant, not just for specific religiously or racially aggravated offences, but for any offence.
Further specific aggravating factors to bear in mind can be found in section 70 of the Sentencing Act 2020, in relation to the offence of using someone to mind a weapon in section 28 of the Violent Crime Reduction Act 2006: where that offence was committed by a person aged 18 or over and the person used was not, this must be treated as aggravating factor. Additionally, section 71 of the Sentencing Act 2020 now sets out where the conditions are met as an aggravating factor when considering the seriousness of the offence of supplying controlled drugs – the offence under section 4(3) of the Misuse of Drugs Act 1971 must have been committed by an offender aged 18 or over and (A) either on or in the vicinity of school premises when those premises are in use by persons under 18 or within an hour before or after that time or (B) the offender used a courier who was aged under 18. The supply of psychoactive substances under section 5 of the Psychoactive Substances Act 2016 is treated equally in section 72, which contains an additional condition where the offence was committed in a custodial institution.
There are a number of provisions that allow the court to hand out an extended sentence for certain violent, sexual or terrorism offences (sections 255, 267, 280; specified offences are listed in Schedule 18) or where the court must impose a life sentence for offences where that is the maximum penalty (sections 258, 274, 285). They all require that the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. In making that assessment, the court has to take into account all the information that is available about the nature and circumstances of the offence, and may take into account any available information on previous convictions, patterns of behaviour or about the offender (for details see section 308). As with aggravating factors, the court can only take information into account if it is available, and section 308 goes well beyond facts that establish the elements of the offence in question and might therefore have been considered less relevant during the investigation.
As with aggravating factors, there are a number of mitigating factors, such as a guilty plea (see section 73); there may also be reasons outside the elements of the offence itself that may lead to a lower penalty. A number of provisions on minimum sentences, for example, allow the court not to impose the minimum sentence where there are exceptional circumstances (see sections 311 to 315). The reduction in sentence for assistance to prosecution that was introduced by the Serious Crime and Police Act 2005, is now dealt with in section 74 of the Sentencing Act 2020 and allows the court when determining the sentence to take into account the extent and nature of the assistance given or offered and to impose a lesser sentence than it otherwise would. Section 388 of the Act provides a mechanism by which previously imposed sentences can be reviewed where the sentence is still being served.
These are just a few topics dealt with in an Act that consists of 420 sections and 29 Schedules. To conclude, the Sentencing Act 2020 does provide a comprehensible framework for sentencing procedure, but whether it will also achieve the aims of increasing public confidence in the criminal justice system and ensure that it operates as efficiently as possible, remains to be seen now that it is in effect.