The Sentencing Act That Was Careful to Change Nothing

On 1 December 2020, the last day of England's second lockdown, the Sentencing Code came into force. It arrived by way of a commencement regulation almost nobody outside the profession read — the Sentencing Act 2020 (Commencement No. 1) Regulations 2020 — while most courts were still sitting over video link and the country was counting down to whatever Christmas rules Number 10 hadn't yet decided. There was no ceremony. There didn't need to be one, because that autumn ministers had already described the Act itself as a landmark: fourteen Parts, twenty-nine Schedules, the "Sentencing Code," years in the making. Weeks earlier the trial of PC Andrew Harper's killers had ended in manslaughter verdicts that produced genuine public fury and a campaign, led by his widow, for the law on killing emergency workers to change. Into that mood the government delivered its Act, and let the association sit.

What the Act actually was, according to the people who drafted it and the barristers who had to read it that winter, is worth stating plainly, because the plain statement is the story. It was a consolidation. It was the outcome of a Law Commission project running to several years, and it arrived paired with a companion piece of drafting housekeeping, the Sentencing (Pre-consolidation Amendments) Act 2020, which existed solely to tidy the ground before the main Act could be laid over it. Its centrepiece innovation, the "clean sweep," was not a toughening measure but a solution to a filing problem: sentencing amendments had commenced by reference to so many different triggers — date of offence, date of conviction, date proceedings began — that judges and counsel were routinely applying the wrong version of the law by accident. The clean sweep simply says the Code applies to anyone convicted on or after 1 December 2020, whatever they did and whenever they did it. That is a genuinely useful fix for a genuinely embarrassing problem. It is also, on its own terms, all the Act promises to be.

Here is the sentence practitioners actually wrote about it at the time, from a pupil barrister's review published within weeks of commencement: the Act "does not effect any substantive changes and does not curtail existing judicial discretion in sentencing, nor does it alter maximum sentences." The Sentencing Council's guidelines remain untouched. Forfeiture, confiscation, disqualification of directors, the procedure for appeals against sentence — all left where they were, outside the Code, unaddressed. The Ministry of Justice's own guidance for drafters calls the Act "a significant step-change." Its own reviewers, reading the same text, call it no change at all. Both descriptions were published by people who had read the Act. Only one of them was talking about sentences.

The case for the consolidation, stated honestly, is not a weak one. Before December 2020, working out which version of sentencing law applied to a given defendant meant tracing amendments back through a scaffold of statutes — the Criminal Justice Act 2003 chief among them, itself amended dozens of times — hunting for the specific commencement date attached to the specific provision. Errors here produced unlawful sentences and appeals, at real cost to real defendants and real victims waiting on outcomes. A single Code that states on its face who it applies to is not decoration; it is the kind of unglamorous competence the system badly needed and rarely gets. And where the underlying toughening the public actually wanted did arrive — restrictions on automatic halfway release for the most serious violent and sexual offenders, the provision that eventually became known as Harper's Law — it arrived through later legislation responding to exactly the pressure the Harper case generated. Parliament was not inert. It simply wasn't this Act that moved.

Which is the difficulty. When a government wants credit for toughening sentences, it reaches for whichever statute has the word "Sentencing" in the title, not for the Pre-Consolidation Amendments Act, which sounds like what it is — the drafting equivalent of alphabetising a filing cabinet. Six years on, ministers are again invoking "the Sentencing Act" to describe measures meant to keep PC Harper's killers, and offenders like them, in prison. The phrase does real rhetorical work. It borrows the moral seriousness of a Code that took years of Law Commission labour to assemble, and attaches it to decisions taken by different ministers, under different provisions, often years later — decisions a member of the public has almost no practical way to trace back to a name, a vote, or a desk.

Compare this with the last government that rewrote the substance of criminal punishment rather than its filing system. The Criminal Justice Act 1948, passed by a Labour government that was rationing bread and still repaying wartime debt to Washington, abolished penal servitude and hard labour and rebuilt the sentencing framework from the ground up inside two years. Nobody needed a barrister's blog to establish whether it changed anything. It plainly had, and everyone in the country — prisoners, judges, the public, the government itself — knew exactly which minister and which Parliament to credit or blame for it. That is the difference between a reform and a restatement wearing a reform's clothes, and it is not a difference of money or drafting talent. It is a difference in whether anyone involved was prepared to be found.

Ask, today, who decided that a particular killer serves two-thirds of a sentence rather than half, and the honest answer runs through the Criminal Justice Act 2003 as amended, the Police, Crime, Sentencing and Courts Act 2022, assorted statutory instruments not yet drafted, and — somewhere in the citation, doing no actual work — the Sentencing Act 2020, which its own drafters will tell you, in writing, changed nothing. The Law Commission decided the tidying. Nobody, in any traceable sense, decided the toughening; dozens of hands did, across three governments, in an archipelago of amending Acts each waiting for its own consolidation in twenty years' time. The public was told it had a landmark. What it got was a filing cabinet, labelled, alphabetised, and utterly silent on who holds the key.