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What is The New Sentencing Code?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.

By Ines Chu

Section Editor for Criminal Law


The new Sentencing Act 2020, which encompasses the ‘Sentencing Code’, is in force from1 December 2020 onwards. The Law Commission has been working in a vast initiative in the last several years: to codify sentencing practices. The goal has now been reached through the Sentencing Law, which has passed through parliament and is pending Royal Assent.[1] The Code is intended to add more consistency to the myriad of diverse sentencing practices and regimes by standardizing them. This reform has been endorsed by numerous legal experts, judges and scholars.[2]

The need and purpose of the Sentence Code

An initiative to consolidate the Sentencing Act was launched by the Law Commission in 2014. This was followed by a 2012 study which pointed out that 36 percent have earned unlawful sentences out of 262 arbitrarily chosen cases from the Court of Appeal (Criminal Division). The Commission found that these mistakes not only induced financial losses and delays but also damaged the public's trust in the judicial system. Law Commissioner Professor David Ormerod QC said: “People want and expect clarity and transparency when the Courts sentence offenders, but judges face an increasingly difficult task when doing so.

“Our changes will make sentencing simpler, by getting rid of the need to dust off decades’ old law, cut Court waiting times and help make sure people get the justice they deserve.”[3]

The Commission estimated that over a ten-year term, the adoption of the Code would save £ 256 million.[4] Hence, by enforcing the new code, it would hopefully set the laws in a more concise manner, which makes it simpler for attorneys and judges, and more convenient for the layman. Furthermore, it is expected that a major additional advantage emerging from the Sentencing Code would be a decrease in the likelihood of mistakes in the sentencing process; which are usually derived from the complexity of the previous sentencing provisions.[5]

The Scope and Content of the Sentencing Code

Although the Sentencing Act 2020 is predominantly a consolidation Act, it actually goes beyond mere consolidation as the process of “clean sweep” is being enforced as the first consultation. This approach does not require the provision specific interim framework, as any prisoner convicted on a date following the entry into effect of the Sentencing Code will be sentenced in compliance with its requirements. This could greatly minimize the difficulty for the judge to decide which of the various related clauses on the day of the sentencing is in force/applicable. Although the Criminal Code does not contain (and has not modified) maximum sentences or sentencing requirements unique to the offence, there should be no adverse effect from this policy on criminals. In particular, situations in which the enforcement of the code may have the ability to place a maximum punishment on the perpetrator higher than that applicable at the time of the crime, the Law Commission also established that the clean sweep procedure can not be used to guarantee that Article 7 and the provision of the common law against retroactivity are complied with.[6]

Following the ”clean sweep” process, the Bar Council’s Law Reform Committee pooled members from various criminal chambers and established a second consultation paper aimed to assemble all current sentencing provisions, culminating in a study running to about 1100 pages. The Law Commission created a draft Sentencing Code in July 2017, for which a substantial response was again assembled by the working group, addressing all topics of detail but also wider perspectives on the framework of the code and some questions of practice.[7]

Possible future amendments

Given the highly political nature of sentencing, constant amendments to the law will be needed. Examples would be the Release of Prisoners Order 2020 and the Terrorist Offenders Act 2020, which we have seen modifications to the release stage for such offenders alone this year.[8] Provided the fundamental truth that new sentencing laws would have to be enacted, the statute regulating the sentencing process will eventually deprecate the advantages of the Sentencing Code, causing it to become fractured again. In order to retain the benefits of the code, a reform in the way that the government implements future sentencing laws would need to be made. To this end, the Law Commission is recommending many approaches by which it is possible to implement sentencing laws in order to preserve the privileges of the Code.[9]


The code will surely reap substantial gains as long as it remains an up-to-date depository of sentencing proceedings. In order to ensure that this happens, the Law Commission has proposed that all additional sentencing laws should be drawn up as an insertion, modification or replacement; potential requirements should be introduced into the current 'uncommented provisions' clause of the Act in order to discourage courts from unintentionally implementing uncommented law; caution should be taken when considering the beginning dates.

If this is achieved and the Code is executed in the way it is designed, it can definitely act as a method to save time and money.[10]


[1]“A New Sentencing Code by Alex Davidson, Pupil Barrister at 2 Bedford Row and Former Lawyer at the Law Commission - 2 Bedford Row.” 2 Bedford Row, 8 Nov. 2020, [2] “The New Sentencing Code - What Is It? | Criminal Law Blog | Kingsley Napley.” Kingsley NapleyKingsley NapleyKingsley Napley, Accessed 12 Feb. 2020. [3] “The New Sentencing Code - What Is It? | Criminal Law Blog | Kingsley Napley.” Kingsley NapleyKingsley NapleyKingsley Napley, Accessed 12 Feb. 2020. [4] Ibid [5] Ibid 1 [6] Ibid [7] ibid [8]“A New Sentencing Code by Alex Davidson, Pupil Barrister at 2 Bedford Row and Former Lawyer at the Law Commission - 2 Bedford Row.” 2 Bedford Row, 8 Nov. 2020, [9] Ibid [10] Ibid 1

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