Sentencing Guidelines: Coming to a Court Near You Soon

Difficult and life-changing decisions are made every day by those responsible for sentencing in our courts. Yet, in recent years, there has been increasing demand from both the government and public for greater transparency and consistency in relation to sentencing.

On 13 November, a Consultation process opened in relation to the Sentencing Council’s proposals for a new system of sentencing guidelines for corporate manslaughter, health and safety and food safety and hygiene offences in England and Wales. The Consultation remains open for responses until 18 February 2015.

The Council has drafted five sets of guidelines. There is a single guidance document covering corporate manslaughter and two sets of guidance in relation to each of health and safety and food safety and hygiene offences; one for offences committed by organisations and another for offences committed by individuals. A draft of the guidelines can be found at Annex C of the Consultation document. If these guidelines come into effect, sentencers must have regard to them, or explain their reasons for departing from them.

The guidelines aim to set out specific starting points and ranges in relation to sentences, although it is intended that sufficient flexibility will remain to ensure that there is still adequate judicial discretion to tailor sentences to individual circumstances. An overview of the model in relation to the health and safety guidelines applicable to organisations is provided below:

Step 1:  The courts should determine the offence category – they should consider harm and culpability factors to identify the seriousness of the offence. For both organisations and individuals, an intentional breach or flagrant disregard for the standards imposed is the top level of culpability. Category 1 is the most serious offences.

Step 2: The courts should identify a starting point and category range – they should determine, from an organisation’s turnover, whether the organisation is a micro organisation (turnover less than £2million), small organisation (£2-10million), medium organisation (£10-50million), large organisation (£50million+) or very large organisation (significantly in excess of £50million+) and use that, together with the offence category, to identify a sentencing starting point and range in the sentencing tables.

Step 3: The courts should ensure the proposed fine is proportionate to the means of the offender.

Step 4: The courts can consider other factors that may warrant adjustment of the proposed fine.

Steps 5 to 9 are standard steps in Sentencing Council guidelines, including factors such as reductions for guilty pleas.
The guidelines aim to arrive at a level of fine that (i) punishes the offender with a real economic impact, having regard to each offender’s financial circumstances, (ii) deters the offender and (iii) removes any economic gain derived from the offence to ensure that it is not cheaper to offend again than to take necessary precautions.

In England and Wales, the guidelines will be applied to all sentences given after the date on which the guidelines come into force, regardless of when the offence was committed. In Scotland, it is likely that they will be seen as highly persuasive, at least until the Scottish Sentencing Council formally approve them or form sentencing guidelines of their own. It is expected that the Scottish Sentencing Council will have been appointed by the end of 2015/start of 2016.

So, what do the guidelines mean in terms of future sentences? The guidelines have been premised on the basis that fines should not be reduced from the levels currently being imposed on small and micro organisations but that fines on large organisations should be set at a higher level. Clearly the guidelines will be welcomed insofar as they seek to promote a consistent and transparent approach to sentencing in these areas whilst retaining discretion to courts to tailor the sentence to individual circumstances. However, the unwelcome effect for those being sentenced is that they are likely to translate into drastic increases in penalties, particularly for larger organisations but also for smaller operations and individuals. For a “large” organisation facing a category one offence with a high degree of culpability, a starting point for the sentence is likely to be £4million, with the upper limit of the category range being £10million. For a “micro” organisation facing a similar offence, a starting point for the sentencer is likely to be £250,000, with the category range being up to £450,000. And for individuals, the guidelines mean the potential for custodial sentences where there has been a deliberate breach of legislation. We think that these hard-hitting guidelines, together with the resultant drastic increases in penalties, will be coming to courts near you soon…