New Sentencing Guideline

Following a consultation in 2018, the Sentencing Council has published a new sentencing guideline to come into effect on 1 October 2019 that will apply to sentences decided on or after that date. This new “General guideline” will apply to the sentencing of organisations and adult individuals.

The General guideline provides overarching principles that will apply to sentencing offences for which there is no offence-specific sentencing guideline, and for use by Courts in conjunction with offence-specific sentencing guidelines. In other words, this General guideline can be applied in determining the sentence of any offence. Therefore, although most business crime offences are covered by specific sentencing guidelines (e.g. fraud, money laundering and bribery), these guidelines can be applied in conjunction with the General guideline.

Accordingly, the General guideline is most likely to apply to addition to, or in conjunction with, the existing offence-specific guidelines. For example, in the event that an organisation is found guilty of money laundering, the Sentencing Council’s guideline for money laundering will apply. However, if the Court finds that there are elements of the General guideline that would also apply to the facts of the case, then the Court can apply those too. One example of this is that the Court may increase the sentence by virtue of the offending organisation having made financial gain from the money laundering offence. This aggravating factor is not one of the non-exhaustive list of factors in the money laundering guideline, but it is present in the General guideline’s list of aggravating factors.

The General guideline updates and replaces the Sentencing Guidelines Council’s “Seriousness” guideline. The changes are in no way substantial or drastic, and instead they merely bring the guideline in line with the current approach to sentencing. The General guideline is a welcome addition to the information available to legal practitioners and the Courts, as it will bring additional clarity to the sentencing procedure.

The key changes from the Seriousness guideline include:

  • A more structured approach to sentencing;
  • Additional information in relation to the imposition of fines; and
  • Expanded explanations of the aggravating and mitigating factors.

Under the General guideline, judges and m

1. Structured approach

Under the General guideline, judges and magistrates are invited to follow a clear structure when sentencing offences with no specific guidelines. This structure will also assist the prosecution and the defence with structuring their submissions regarding sentencing.

Step 1 – Reaching a provisional sentence
Step 2 – Aggravating and mitigating factors
Step 3 – Consider any factors which indicate a reduction for assistance to the prosecution
Step 4 – Reduction for guilty pleas
Step 5 – Dangerousness
Step 6 – Special custodial sentence for certain offenders of particular concern
Step 7 – Totality principle
Step 8 – Compensation and ancillary orders
Step 9 – Reasons
Step 10 – Consideration for time spent on bail (tagged curfew)

Step 1 will assess the seriousness of the offence, as before, by determining the culpability of the offender and the harm caused by the offence. The new General guideline provides some additional information about the different elements of culpability and harm to consider.

2. Imposition of fines

In addition to the ranges of the fine bands that were already provided in the Seriousness guidelines, the General guideline provides guidance to ensure that fines remove any economic benefit from the commission of the offence. It also requires that the Courts obtain financial information about the offender.

Some of the key guidance in the new General guideline include:

“The court should determine the appropriate level of fine in accordance with this guideline and section 164 of the Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.”

“The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to comply with the law.”

“When sentencing organisations the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.”

3. Expanded explanations

Although the aggravating and mitigating factors themselves have not changed, the new General guideline provides expanded explanations for these. Some key examples include:

“Commission of the offence for financial gain

Where an offence (which is not one which by its nature is an acquisitive offence) has been committed wholly or in part for financial gain or the avoidance of cost, this will increase the seriousness.

• Where the offending is committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability.

  • examples would include, but are not limited to, dealing in unlawful goods, failing to disclose relevant matters to an authority or regulator, failing to comply with a regulation or failing to obtain the necessary licence or permission in order to avoid costs.
  • offending of this type can undermine legitimate businesses.

• See the guidance on fines if considering a financial penalty.”

“Good character and/or exemplary conduct

This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence.

However, this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.”

With this additional information, the prosecution and defence will have more clarity as to the meaning of these factors. Moreover, the expanded explanations will lead to more consistent and transparent application of factors in sentencing of offences by the Courts.

For further details about the new General guideline, please visit the link below:

www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/general-guideline-overarching-principles/

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