1.2The Law Commission noted in the same report that without any change to the existing legislative framework, the new Council would confront difficulty in developing guidelines in a coherent and consistent way. That is because s 8(c) and (d) of the Sentencing Act 2002 codify the presumptions (existing previously in case law) that the maximum penalty should be imposed for the most serious offending, and a penalty near to the maximum should be imposed for offending that is near to the most serious. The difficulty is that maximum penalties have a number of serious relativity problems and other anomalies. Thus, if the development of guidelines was based upon the existing structure of maximum penalties – as s 8(c) and (d) require – and if that structure remained untouched, the levels at which guidelines were set and the relativities between one offence and another would be likely to reflect the existing maximum penalty problems. This would create something of a dilemma for the Council: it could seek to draft guidelines that were coherent and defensible by reference to all of the other considerations relevant to its task, but it could then be seen to be acting contrary to law.
1.3It was proposed that the Law Commission should be directed to review the role, format and structure of maximum penalties in parallel with the development of the inaugural sentencing and parole guidelines, and to recommend any changes required to correct existing anomalies and ensure consistency with the purposes and framework of a guidelines system. At the same time as it accepted the Law Commission’s recommendations for sentencing and parole reform, the Government of the day agreed with the proposal for a review of maximum penalties and gave the Law Commission a reference accordingly.
1.4However, when the National Government took office after the 2008 election, it announced that it did not intend to proceed with the establishment of a Sentencing Council. The Council is therefore now in abeyance (although the Act under which it was to be established has not been repealed and is still in force). Accordingly the particular context in which the Law Commission’s proposal for a review of maximum penalties was made is no longer current.