Law Commission consultation on the Sentencing Code Law Society response

Law Commission consultation on the Sentencing Code Law Society response January 2018 The Law Society 2018 Page 1 of 12

Introduction The Law Society of England and Wales ( The Society ) is the professional body for the solicitors' profession in England and Wales, representing over 170,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. This response has been prepared on the Society's behalf by its specialist Criminal Law Committee. The Committee is drawn from a wide range of criminal law backgrounds, including prosecution and defence solicitors, local authority solicitors and an adviser to magistrates. The Society welcomes the opportunity to respond to this consultation; it is very supportive of the Law Commission s Sentencing Code project, and has contributed to previous consultation exercises, as well as meeting with members of the Commission to discuss the project as its work has progressed. Improving the quality and clarity of the criminal law is one of the key purposes of the Criminal Law Committee, a purpose it shares with those at the Law Commission working on the Code. We will set out our answers to the questions in the consultation paper; we hope that our comments are useful in further consideration of the Code. Question 1. Does the draft Sentencing Code reflect the current law on sentencing, bearing in mind those pre-consolidation amendments that have been proposed, and the effect of the clean sweep? The draft Sentencing Code does reflect the current law on sentencing, although the impact of the clean sweep will need to be carefully monitored to ensure no sentence-specific unfairness occurs. It has the potential to make the process of sentencing easier and more consistent. There may be gaps where legislation relating to the more specialist or technical offences has not been included e.g. Trade Marks Act 1992. Question 2. Do consultees approve of the policy we have adopted with regard to the inclusion of provisions in the Sentencing Code? Yes, we approve of the policy adopted regarding the inclusion of provisions. We further agree that it is sensible to signpost specialist legislation, e.g. the Animal Welfare Act, where separation from its originating legislation would create unnecessary confusion. It is sensible to group orders which may not necessarily require a finding of guilt, such as restraining orders under s5a of the Protection from Harassment Act 1997; this will present the court with one place to find all the relevant orders that may be made in such circumstances. Question 3. Do consultees agree with the above categorisation of sentencing powers? This categorisation is designed to assist in ensuring that the Bill is structured in the most effective manner. It will dictate whether provisions are placed in the third Group of Parts primary sentencing powers or the fourth Group of Parts further powers relating to sentencing. Yes, the categorisation of sentencing powers is sensible and easy to follow. However, while we agree the categorisation is helpful conceptually, we suggest that there are two areas which should be clarified, alongside the presentation of the table, to avoid confusion: a). It should be made clear that the ancillary orders are different from the community requirements that can be imposed alongside community and suspended sentence orders. The Law Society 2018 Page 2 of 12

b). Whilst it may seem obvious in the context of the Code, it may be helpful if it were nevertheless made clear that the ancillary orders only apply in particular circumstances. Question 4. Further to the above proposal, do consultees believe that it would be useful to include provision directing the court that in every case in which it deals with an offender for an offence, it must always make at least one primary sentencing powers order, and may make appropriate additionally orders from the further powers relating to sentencing? We do not believe it would be a good idea to make this mandatory, because currently judges have the power to make orders for no separate penalty in relation to multiple offences on an indictment where they consider that the sentence for one offence adequately represents the totality of the criminality of the acts which make up the offences in question. The totality principle allows the judge to take into account any prison sentence served after the new offences have been committed if the prison sentence was for similar, continuing or related offences. Judges also have powers to allow offences to lie on the file in other circumstances where they do not consider any penalty to be imposed. If it were to be mandatory for the court to make at least one primary sentencing powers order this would therefore change sentencing law, which we understand is not the intention of the Code. The answer may be to add in a provision allowing for a judge to make a no separate penalty on a particular offence; that is to say either there is a primary sentence order, or no separate penalty. Question 5. Do consultees approve of those matters which we have included within the Sentencing Code? Do all of them belong in the Sentencing Code? Yes, we do and agree they are all matters which should be in the Code. If anything, there should be more signposts to other Acts, particularly where there are forfeiture powers or powers to take away licenses upon conviction, for example the premises licence under the Licensing Act 2003. Question 6. We propose that absolute discharges available on a special verdict should be redrafted in the Criminal Procedure (Insanity) Act 1964, thereby removing the need to apply the modifying provisions in section 5A of that Act. Do consultees agree? No, we do not agree. The Code should avoid redrafting these provisions as this would lead to further confusion; in our view the preferable option is that suggested at paragraph 2.76, to instead insert into the Code the range of options available in such cases, so that the sentencing court can see the options available in one place in the Code. Question 7. We propose to recast provisions relating to hospital orders available on a special verdict in the Criminal Procedure (Insanity) Act 1964, thereby removing the need to apply the modifying provisions in section 5A of that Act. Do consultees agree? Yes, we agree that this would simply the sentencing exercise as the full nature and extent of the modifications are ambiguous and generally misunderstood. Question 8. Do consultees agree that those disposals available on a special verdict should all be contained in the Sentencing Code? The Law Society 2018 Page 3 of 12

Question 9. Do consultees approve of the approach we have taken with regard to signposting provisions? Are these useful? Do they make the Sentencing Code more comprehensive? Yes, we approve of the approach to signposting provisions. We note that some matters are not, if one were to interpret the law strictly, sentencing powers. For example, some may require an additional application to be made at the time of sentencing to the magistrates or Crown Court and are not only available for use on conviction but are also available to be used after a separate civil application to the Magistrates court e.g. the power to apply for forfeiture of illegally trademarked goods under the Trade Marks Act 1994. However, we consider it a strange decision to exclude from the Code the power to bind over to keep the peace. We note the reasoning for this decision, i.e. that it is not strictly a power of sentencing for those found guilty of an offence and can apply to anyone involved in a case as a preventive measure. However, such reasoning seems inconsistent with the decision to include the power to make a restraining order upon acquittal under the Protection from Harassment Act 1997 (the reasoning being that it is the most sensible place for it). In our experience, the power to bind over is a fundamental criminal court power that is frequently used for dealing with offenders, often of the public order type, whose act is deemed to fall short of a criminal offence requiring punishment. It is used frequently and is often offered by defence lawyers, with their client s agreement, in exchange for discontinuing a prosecution where public interest considerations indicate this as an appropriate disposal. In our view, it is regarded as a sentencing disposal, even if not technically so in law. The power to bind over should be included. It is an important, frequently used and useful criminal court power and is analogous to the restraining order on acquittal. We agree that the common law rules should not be codified for the reasons given; there is no pressing public interest need for this to occur. Signposting provisions to the Criminal Procedure Rules and Practice Directions, which in turn refer to case law, relating to aspects of the common law, should be included. It will be important to ensure that any guidance issued under the Criminal Procedure Rules or Practice Directions does not stray into the territory of the Code, and it is certainly right that the Code itself should not refer to case law which is likely to develop outside of the Code. Question 10. Do consultees approve of the decisions we have taken with regard to excluding certain provisions from the Sentencing Code? Is there anything which consultees believe necessarily must form part of a functioning and coherent Code? We approve of the decisions taken to exclude certain provisions, particularly in relation to provisions that prescribe offence-specific maximum sentences; we agree that there is an expectation that the offence-creating provision should contain the maximum sentence. Sentencing Guidelines signpost these well enough. We further agree with keeping the Road Traffic offences regime separate, and to include signposts only to the confiscation provisions. As the consultation paper acknowledges, it is important to keep the issue of sentencing appeals distinct and separate from the provisions to be included in the Sentencing Code. We agree that there is a distinct set of procedures governing sentence appeals and that the Code should not interfere with these. We further consider it right to make a distinction The Law Society 2018 Page 4 of 12

between rules governing appeals and the specific slip rule powers, because the latter are a procedure which can remedy a sentencing error before it reaches the appellate stage. Question 11. Do consultees approve of the way in which the Sentencing Code has been structurally organised? Is it in the most efficient possible layout? Are the available disposal powers correctly ordered? Yes, we approve of the Code s structural organisation, and cannot think of a better or more efficient layout. Question 12. Do consultees support our conclusion that the statutory surcharge should be an automatically imposed consequence of conviction? There would be no need for the court to make any reference to the surcharge, save for in those cases where the offender had limited means to satisfy other financial orders. No, we do not support this conclusion. In our view, it is important for defendants to understand that a surcharge (or indeed, any other penalty or order) has been imposed, particularly with the increasing numbers of litigants in person before the criminal courts. The best way of letting a defendant know that a surcharge has been imposed is to tell her at the moment of sentence. The principle of clarity in the sentencing process requires that a defendant knows exactly what orders have been imposed against them, whether they are primary orders, ancillary orders or financial penalties or surcharges. Question 13. Do consultees think that the introduction of a definition of mandatory sentence requirements in place of individual lists of such provisions is helpful? Yes, the introduction of a definition of these requirements is helpful. Question 14. Do consultees consider that the proposed definition of mandatory sentence requirements is correct? Do they consider that special custodial sentences for offenders of particular concern under section 236A of the Criminal Justice Act 2003 should be included? We do not agree that Section 236A orders should be included in the list of mandatory sentence provisions, because this would have the effect of fettering judicial discretion, which we understand should not be the aim of the Code. Question 15. Do consultees agree that the only offence for which the sentence is fixed by law is murder? If so, how would they describe offences like those under section 51 of the International Criminal Court Act 2001? Whilst currently the only sentence fixed by law is for murder, it would arguably be wrong for the Code to fetter the scope for other mandatory sentences to be included. Question 16. If consultees agree that the only offence for which the sentence is fixed by law is murder, do they agree that the term fixed by law should be replaced with a description of the order, namely the mandatory life sentence for an offence of murder (or something similar)? Question 17. Do consultees agree that section 142 of the Criminal Justice Act 2003 (the purposes of sentencing) should be amended so that it applies subject to mandatory sentencing requirements, rather than being completely disapplied in such cases? The Law Society 2018 Page 5 of 12

Question 18. Do consultees consider that the signposts provided by clause 55 (the purposes of sentencing in relation youths) are a useful addition? Yes, we agree for the reasons stated. Question 19. Do consultees agree with our decision to leave out of the Sentencing Code those provisions relating to the establishment and role of the Sentencing Council? Yes, we agree that provisions relating to the establishment and role of the Sentencing Council should not be included in the Code. Question 20. Do consultees agree that the phrases guideline category starting point and non-category starting point provide greater clarity than the references to the sentencing starting point and appropriate starting point contained in section 125 of the Coroners and Justice Act 2009? We do not think proposed phrases are particularly clear. We would propose: starting point in the sentencing guidelines and starting point by judicial discretion. Question 21. Do consultees agree with the proposed replacement of the phrase notional determinate term with the term appropriate custodial term in clause 58? Yes, we agree that appropriate custodial term is a more apt expression. Question 22. Do consultees consider that the replacement of the list of provisions in section 156(1) of the Criminal Justice Act 2003 (duties when forming specific opinions), with signposts to the duty in all the qualifying provisions is helpful? Yes, this is helpful. Question 23. Do consultees think that the scope of the Sentencing Code should include all mandatory aggravating factors including section 29(11) of the Violent Crime Reduction Act 2006 and section 4A of the Misuse of Drugs Act 1971? Yes, we agree, for all the reasons outlined in the consultation document. Question 24. Do consultees believe that the duty to treat previous convictions or the fact that the offender was on bail at the time of the offence, as aggravating factors under section 143 of the Criminal Justice Act 2003 should be amended, in line with the other duties to treat facts as aggravating factors, to include a duty to state in open court that the court has done so? Question 25. Do consultees think that it would be desirable in principle if section 144 of the Criminal Justice Act 2003 was amended so that a reduction for guilty plea could allow a court to impose a sentence less than that required by either section 51A(2) of the Firearms Act 1968 (the minimum sentence for certain firearms offences) or section 29(4) or (6) of the Violent Crime Reduction Act 2006, provided that the sentence imposed was not less than 80% of the required sentence for an offender where the offender is over 18? The Law Society 2018 Page 6 of 12

We emphasise that this is not a change that we could make as part of this project but it could form part of a package of recommendations in our final report which go beyond the Sentencing Code as initially enacted. Yes. Whilst recognising that this is not a change that could be made as part of the Sentencing Code project, we strongly agree that this is desirable. It is perhaps appropriate for this proposal to be subject to a further detailed consultation at the relevant time, given its significance and potentially controversial nature. Question 26. Do consultees agree that the benefits of restating the definition of specified prosecutor from section 71 of the Serious Organised Crime and Police Act 2005 outweigh the administrative disadvantages and the risk that a prosecutor is not specified under one of the two versions? We do not have a view in relation to this question. Question 27. We welcome consultees views on the balance that the draft Sentencing Code strikes by including some general provisions on fines, but generally excluding provisions relating to the fine levels and maximum fines for particular offences. We agree with the suggested approach to the inclusion of some general provision, but to exclude provisions relating to levels and maximum fines, for the reasons given. Question 28. Do consultees find the table showing the summary fines levels over time in clause 84 helpful? Could it be improved? Yes, it is helpful, and we have no suggestions to improve it. Question 29. Do consultees find the new clause 80 which sets out the general power of the magistrates court to impose fines helpful? Yes, it is helpful, and we have no suggestions to improve it. Question 30. Do consultees find the new streamlined compensation order provisions more accessible? Yes, we do, and we welcome the changes that will improve consistency in terminology. Question 31. Do consultees agree that the removal of the limit on compensation orders can safely be retrospectively applied to offences which pre-date its commencement, as an example of the clean sweep in operation, given that the purpose of a compensation order is not punitive in its aims and therefore Article 7 is not engaged. No. Whilst we accept that compensation orders are not punitive in theory, in practice they are imposed at sentence, are categorised in the table set out at page 31 as a primary sentencing order and are perceived by defendants to be punitive. We consider that there should be a further exception to the clean sweep principle accordingly. Question 32. Do consultees agree that the table in clause 113 providing a nonexhaustive list of signposts to other conviction forfeiture powers is helpful? Yes, it is helpful, although the Code should make clear that the list of forfeiture powers in clause 113 is non-exhaustive. Question 33. Can consultees offer other suggestions for inclusion in the table in clause 113? The Law Society 2018 Page 7 of 12

Yes, please see the appendix to this response. One of our members has prepared a schedule of forfeiture powers, which we believe the Commission will find useful. Question 34. Do consultees consider that the material relating to community orders in the draft Sentencing Code has been structured appropriately? Could any improvements be made to the layout of this part? Yes, and we are unable to suggest any ways to improve its layout. Question 35. Do consultees agree that the use of the concept of an available requirement has improved the clarity of the law? Question 36. Do consultees agree that the use of the table showing the available community requirements is an improvement over the current law? Yes, we agree that the use of a table of requirements is an improvement. Question 37. Do consultees agree that the streamlining changes to the court s powers to revoke and resentence community orders have improved the consistency and clarity of the law? We are unable to answer this question. Question 38. Do consultees believe that the material relating to suspended sentence orders in the Draft Code is appropriately structured? Can they suggest any ways in which it might be improved? Yes, we agree it is appropriately structured and we suggest no improvements. Question 39. Do consultees consider that the table in clause 201 setting out the restrictions and obligations in relation to the imposition and availability of community requirements is helpful? Question 40. Do consultees believe that the substantial rearrangement of paragraphs 8 to 12 of schedule 12 to the Criminal Justice Act 2003 in paragraphs 10 to 21 of schedule 10 clarifies the powers of the magistrates courts and Crown Courts where an offender serving a suspended sentence order is before them? Yes. Question 41. Do consultees think that the re-ordering of schedule 13 to the Criminal Justice Act 2003 in schedule 11 improves the clarity and accessibility of the law? Yes. Question 42. Do consultees agree that the introduction of the phrases SSSO and NISSO in schedule 11 is useful? Yes. Question 43. Do consultees agree that it is desirable to split the provisions relating to specific custodial sentences into three age groups, under 18, 18 to 20 and 21 and over, and to group the clauses for each age group together? The Law Society 2018 Page 8 of 12

Yes. Question 44. Do consultees consider that the provisions relating to the different variations of custodial sentence should be arranged in ascending, or descending, order of severity? We would prefer ascending order of severity. Question 45. Do consultees believe that either a catch-all term to cover all custodial sentences, or removing the distinction between a sentence of imprisonment or detention in a young offender institution, with the one sentence simply being served in a different place depending on age, might be desirable? Yes, we believe that either option may be desirable to improve consistency in the labelling of the various custodial sentences applicable to different ages of defendants. Question 46. Do consultees consider that the benefits of re-drafting sections 132 and 133 of the Magistrates Courts Act 1980 into the Sentencing Code outweighs the potential disadvantages? Yes. Question 47. Do consultees agree that the re-drafting of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 makes the provision easier to follow and apply? Yes, we agree the redrafting makes the provision easier to follow and apply. Question 48. Do consultees agree that the clean sweep should not apply to sections 225 or 226 of the Criminal Justice Act 2003? Yes, we agree the clean sweep should not apply to these provisions. There would be a grave risk of unfairness were judicial discretion to be fettered in relation to the imposition of sentences under sections 225 or 226. Question 49. Do consultees agree that the approach taken in the re-drafted version of schedule 9 of listing the cut-off date for the offence in column 2 is useful? Yes. Question 50. Do consultees agree with the approach taken in splitting up schedule 15 to the Criminal Justice Act 2003 into three schedules: one for non-sentencing purposes, one for the purposes of references to specified offences and one for the purposes of life sentences under the re-drafted versions of sections 225 and 226 of the Criminal Justice Act 2003? Question 51. Do consultees find the signposts to the definitions of specified offence and serious offence, as well as the test of dangerousness, helpful? Yes, they are helpful. Question 52. Do consultees think that all minimum sentence provisions listed in paragraph 9.41 should be re-drafted in the Sentencing Code? The Law Society 2018 Page 9 of 12

Yes, it would be preferable for all minimum sentence provisions to be re-drafted in the Code, as this would be consistent with what we understand the aims of the project to be, i.e. creating a single Code applicable to all sentencing exercises. We agree with the arguments set out in paragraph 9.43, and consider that the benefits of doing so would outweigh the disadvantages. Question 53. If not, which provisions should be re-drafted in the Sentencing Code, and which ought to be left in their current locations? Not applicable. Question 54. Do consultees agree that we have included all the provisions relating to the administration of sentence that a court needs to be aware of when sentencing to properly exercise its functions? Yes, we agree insofar as we are aware of matters relating to the administration of sentences. Question 55. Do consultees agree that the orders included in clause 262 are those which a sentencing judge needs to be aware of? Are there some which ought to have been included which are not, or some which are included which should be omitted? Yes, we agree the three ancillary orders set out are orders which a sentencing judge needs to be aware of; we do not consider that others should be included, nor any that should be omitted. Question 56. Do consultees agree that restraining orders on acquittal belong in the Sentencing Code? The imposition of a restraining order on acquittal is an unusual, but sometimes useful power. It should be included, despite it not being a sentencing matter per se. Question 57. Do consultees agree with the decision to signpost, but not to re-draft, Sexual Harm Prevention Orders? If the view is that they should be re-drafted into the Sentencing Code, do consultees consider that this justifies splitting the versions available on application and the variations available to a sentencing court and splitting schedule 3, re-drafting it in the Sentencing Code for the purpose of Sexual Harm Prevention Orders and leaving in the Sexual Offences Act 2003 for the purpose of notification? We agree with the decision to signpost and not redraft SHPOs. Question 58. Do consultees think that the format of the table of signposts in clause 262 is helpful? Could it be improved? We think the format is helpful. Question 59. Do consultees agree that sentences imposed by the magistrates courts take effect from the beginning of the day on which they are imposed (unless otherwise directed), and that section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 should be extended to them to make this clear? Yes, we agree with both propositions. The Law Society 2018 Page 10 of 12

Question 60. Do consultees agree that the Crown Court can only direct that a sentence takes effect other than on the day it is imposed by imposing it consecutively on the expiry of another sentence, or minimum term, from which the offender has not already been released? If so, do consultees consider that it would be desirable to formally codify this position? Yes. Question 61. Do consultees agree that the 56-day limit on the Crown Court s ability to alter previously imposed sentences under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 should be extended? How long should any limit be? Yes, this change is vital. The failure to have an extended slippage rule has meant that the Court of Appeal has been burdened with dealing with sentencing errors that could easily have been remedied once the error had been identified. Sometimes that error is not immediately apparent, or may only become clear when a fresh review of the outcome takes place. Ideally it would be preferable to extend the period to 128 days. Question 62. Should the time limit on the Crown Court s ability to alter previously imposed sentences under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 be longer for the correction of errors of law than for the amendment of sentence for other reasons? No, it is unnecessary to be over-prescriptive as to the basis of the error. Question 63. Do consultees agree that the requirement that the alteration of sentence must be conducted by the same judge who imposed the original sentence should be removed, in favour of a provision which allowed the resident judge of the Crown Court centre in question to make the alteration in circumstances where it is not reasonably practicable for the original judge to sit inside the 56-day period? Yes, we agree, provided that the records maintained by the sentencing judge are sufficient for the alteration of the sentence to be fairly made. The Law Society 2018 Page 11 of 12

Appendix: Legislation creating powers of forfeiture: 1. TRADE MARKS ACT 1994, SECTION 97 2. COPYRIGHT DESIGNS AND PATENTS ACT 1988 - Section 108 Order for delivery up in criminal proceedings. 3. ENVIRONMENTAL PROTECTION ACT 1990 - Section 33 offences: forfeiture of vehicles 4. HEALTH AND SAFETY AT WORK ETC ACT 1974 section 42 Power of court to order cause of offence to be remedied or, in certain cases, forfeiture. 5. CONSUMER PROTECTION ACT 1987 Section 16 Forfeiture: England and Wales and Northern Ireland. 6. FOOD SAFETY ACT 1990 Section 9 Inspection and seizure of suspected food. 7. LICENSING ACT 2003 - Section 128 Personal Licenses Section 147B Order suspending a licence in respect of offence under section 147A of persistently selling alcohol to children Notes These are only some that I have come across, there are also statutes relating to: Tobacco Children and Young Persons Act 1933, Children and Young Persons (Protection from Tobacco) Act 1991, Children and Families Act 2014 and the Children and Young Persons (Sale of Tobacco) Order 2007. Health Act Fireworks Housing Act There are also powers given to the FSA, DWP, and ICO giving them such powers. General note if you look at the current Bill relating to powers of entry: https://publications.parliament.uk/pa/ld200708/ldbills/071/2008071.pdf there is a long list of all the statutes that contain powers of various bodies to enter premises. I have found so far in my research that the Acts of Parliament containing rights to enforce and with powers of entry are also likely to contain powers of forfeiture on conviction, so if I were doing a comprehensive search I would start there using variations of the word forfeiture confiscation suspension (licenses). However, it will be a mammoth task. Shelagh Lyth 20 Dec 2017 The Law Society 2018 Page 12 of 12