Commentary on provisions of Act Section 1: Consolidation of sentencing legislation: amendment of law for old offences
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 For example, there are occasions when an Act is repealed but some provisions in the Act remain in force (are partially saved) for certain circumstances.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.
	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.
	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.