Surcharges and other financial penalties should not be automatically imposed on conviction due to the increasing number of defendants appearing without legal representation, the Law Society has said.

Responding to the Law Commission's proposals to tidy up 'decades-old' sentencing law and cut court waiting times, Chancery Lane said it is important that defendants understand that a surcharge or another penalty has been imposed. 

The commission's consultation paper states that the judicial duty to declare that a surcharge applies has resulted in unnecessary errors, with either no surcharge being imposed, the wrong amount being ordered, or a surcharge being imposed when it should not have been. The commission proposes making a surcharge imposition an automatic consequence of conviction. The amount payable would be determined as an administrative matter post-sentencing.

However, the Society stressed that the best way of letting a defendant know about a surcharge is 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,' the Society said.

The Society calls for the current 56-day limit on the Crown court's ability to alter previously imposed sentences to be extended to 128 days. The failure to have an 'extended slippage rule' has meant the Court of Appeal being burdened with sentencing errors that could have been remedied when the error was identified, it said.

Chancery Lane agrees with the commission's idea to signpost specialist legislation, such as the Animal Welfare Act, where separating it from its originating legislation under the new code may unnecessarily confuse judges. The Society says it is 'sensible' to group orders which may not necessarily require a finding of guilt, such as retraining orders under the Protection from Harrassment Act 1997 as judges will have one plce to find all the relevant orders that can be made.

The commission's consultation on the new code closed last week.

The commission believes the code would reduce the risk of unlawful sentences by giving courts a single reference point. Complex provisions would be simplified 'in modern language' and judges would no longer need to refer to historic legislation. The commission estimates that the code will save up to £255m over the next decade by avoiding unnecessary appeals and reducing sentencing delays 'clogging up' the court system.