It came into effect on 1 December 2020 by virtue of the Sentencing Act; and applies only to England and Wales – extending to the other two nations only where necessary.
It consolidates more than 50 pieces of primary legislation and procedural provisions which the court relies on during sentencing, but no substantive legal changes have been introduced. The Code sets out general sentencing provisions, the different types of sentence available and also behaviour orders which are also available for the court to impose, additional to any sentence.
The new Code covers adult and youth offending, including armed forces personnel; and applies to individuals who are convicted on or after 1 December, irrespective of the date of the actual offending. However, it is recognised that there will still be transitional cases where some offences that come before the court for sentencing will be governed by the new Code, and others by the law before 1 December.
There is also an important safeguard against the Code being unfairly applied retrospectively - no defendant will be at risk of being sentenced to a heavier penalty than could have been imposed at the date the offence took place. For that reason, the Sentencing Council states that there should not be any basis on which an article 7 or retrospectivity argument arises.
However, the Code does not apply in the following circumstances:
- Where there is a breach of an order imposed.
- Where an offender is being re-sentenced on appeal.
- In slip rule hearings where the conviction pre-dated 1 December 2020.
Practitioners should also note that the Code does not cover every type of sentence/disposal, as it was not possible to do so. Those excluded from the Code include confiscation, provisions under the Road Traffic Act and license arrangements.
What’s the aim?
The key aim of the Code is to simply what has become highly complex sentencing laws which contained several ambiguities. The consequences of the increasing numbers of sentencing laws and provisions included delays, errors and resulting appeals. This, of course, has caused a costly expense to the justice system – the Law Commission estimated that the Sentencing Code could save up to £255m over the next decade.
The government hopes that transparency of, and public confidence in, the sentencing process will be increased and that the number of errors and unlawful sentences being passed by sentencing judges will now be reduced with the Code now in force.
The Sentencing Council has confirmed that all sentencing guidelines, as well as expanded explanations and explanatory materials, have now been amended to reflect the Sentencing Code; and that there are no conflicts between the sentencing guidelines and the Code itself.
Any future amendments to be made will be made to the Code rather than by way of separate enactment.