Sentencing (Pre-Consolidation Amendments) Act 2020

Commentary on provisions of Act

Section 1: Consolidation of sentencing legislation: amendment of law for old offences

22. One of the issues with complexity in sentencing laws is the layering of changes to legislation over time – which means that different provisions apply to different offences and offenders, depending on when the offence was committed. For example, there are occasions when an Act is repealed but some provisions in the Act remain in force (are partially saved) for certain circumstances. Section 1 of the Act contains a "clean sweep" provision. The clean sweep approach removes the need to identify and apply historic versions of the law, minimising the use of complex transitional provisions, whilst respecting the fundamental rights of those affected by the sentencing process.
23. The legal effect of the section is twofold: first, to fully repeal partially saved provisions concerning sentencing procedure which are no longer needed, and secondly, to fully commence provisions concerning sentencing procedure that have only been commenced prospectively.1 With limited exceptions, this means that all offenders convicted after commencement of the Code would be sentenced by applying the sentencing law and procedure in the Code regardless of when the offence was committed.2 The clean sweep applies only to provisions to be consolidated by the Code, and does not apply more broadly.
24. The clean sweep is subject to exceptions to ensure that no offender is subject to a greater penalty than that available at the time of the offence, or subject to a minimum or mandatory sentence that did not apply at the time of the offence. These exceptions ensure that the clean sweep does not contravene the general common law presumption against retroactivity, and accords with human rights protections against retroactive criminalisation and retroactive punishment – in particular those provided by Article 7 of the European Convention on Human Rights. Subsections (4) and (5) of this section give effect to those exceptions. Subsection (4) ensures that the clean sweep does not increase the maximum penalty for any offence. Subsection (5) gives effect to Schedule 1 to the Act which creates a series of exceptions to the clean sweep necessary to ensure no offender is subject to a greater penalty than that available at the time of the offence, or subject to a minimum or mandatory sentence that did not apply at the time of the offence, and confers on the Secretary of State a further power to make regulations to ensure this.

Section 2: Pre-consolidation amendments relating to sentencing

25. Section 2 refers to the pre-consolidation amendments and modifications of sentencing legislation contained in Schedule 2 to the Act. Such changes are a standard measure which precedes consolidation Acts. As a consolidation must operate on the current law, it is necessary to make certain changes to allow the consolidation to happen. For example, changing language to avoid inconsistency, correcting error or updating existing statutory references.
26. The section also gives the Secretary of State the power to make any further pre-consolidation amendments to legislation, by statutory instrument laid under the affirmative procedure, to enable the consolidation to proceed. This power is limited only to changes that the Secretary of State is of the opinion facilitate, or are otherwise desirable in connection with, the consolidation. As such, once the consolidation occurs, the power will no longer be able to be used.

Section 3: Interpretation

27. This section lists the Acts referred to in the Act and caught by the phrase "the Acts relating to sentencing". It also clarifies what is meant by other definitions or defined phrases used throughout the Act.

Section 4: Regulations

28. Section 4 requires any relevant regulations made under section 1, that will create an exception to the clean sweep, or section 2 to be made by a statutory instrument that is laid in and approved by both the House of Commons and House of Lords. Any such regulations are to come into force in accordance with section 5.

Section 5: Commencement, extent and short title

29. Subsection (1) confirms that, to enable regulations to be made under section 1(5)(b) and section 2(2), the Sentencing (Pre-consolidation Amendments) Act comes into force on Royal Assent. Subsections (2) and (3) of section 5 confirm that the clean sweep and any exceptions to it in Schedule 1 or regulations under section 1, and the pre-consolidation amendments in Schedule 2 and any further amendments made under section 2, do not come into force unless a consolidation of the legislation relating to sentencing – in practice, the Sentencing Code - is enacted and that if the Code is enacted those provisions will come into force immediately before the consolidation date (i.e. the date at which the Code comes into force). Section 5(3) also provides that those provisions will only relate to an offence of which a person is convicted on or after the date that the Code comes into force. 3
30. Subsection (8) replicates the power conferred by section 338 of the Criminal Justice Act 2003 to allow for the pre-consolidation amendments in Schedule 2 and any further pre-consolidation amendments made under section 2 in relation to the Criminal Justice Act 2003 to be extended to the Crown Dependencies.
31. Subsections (9) – (11) of section 5 directly extend the pre-consolidation amendments of armed forces legislation (the Armed Forces Act 2006 and legislation applied by or under it) contained in Schedule 2, and any further pre-consolidation amendments made under section 2, to the Isle of Man and British overseas territories (except Gibraltar), and also replicate the power conferred by section 384 of the Armed Forces Act 2006, which allows for any of the provision of that Act to be extended to the Channel Islands.
32. Section 5 also sets out the territorial extent of the Act (see paragraphs 17 to 19 above).