The Sentencing Guidelines Council published its comprehensive guidelines in relation to sentencing for offences of money laundering, fraud and bribery for “corporate offences”. These are the first set of sentencing guidelines specifically dealing with corporate crime and white-collar offences.
The latest guidelines will be part of sentencing guidelines for fraud, which are due to be released this summer, according to the Sentencing Council.
The new guidelines will take effect in respect of all corporate offenders sentenced on or after 1 October 2014 in accordance with Section 120 of the Coroners and Justice Act 2009. The guidelines have been established to deliberately coincide with the creation of “Deferred Prosecution Agreements” which are also expected to come into force this month.
According to the guidance issued the guidelines aim to simplify the process for sentencing corporate offenders and determine sentencing using the following criteria:
- Step one – Determining the issue of compensation. If it is found appropriate, compensation should be given precedence over any financial penalty, if the offender is limited by his means. The sentencing judge must give reasons if a compensation order is not imposed.
- Step two – The sentencing judge should determine if confiscation proceedings should be ordered
- Step three – The judge will then determine the category of the offence and harm caused.
- Step four –– Following Step three, the judge will consider the starting point and sentencing range; aggravating and mitigating features.
- Step five – the sentencing judge is then required to make any amendments or adjustments to the fine, with the overriding consideration that it is reasonable and proportionate with reference to the financial capacity of the defendant and based on offence serious seriousness.
It is important to note that if the court considers a fine and compensation to be significant enough to have a ” real economic impact which will bring home to both management and shareholders need to operate within the law”, The punitive impact of such a sentence would also consider ” whether the fine would have the effect of putting the offender out of business”, ominously the guidelines go on to state that ” in some bad cases this may be an acceptable consequence.”
The impact of the guidelines
The guidelines emphasise a marked shift towards being more victim centric for their economic and personal losses resulting from the offence, before the imposition of financial penalties. However, the economic impact of this approach will be felt keenly on those convicted and the organisation, which also impacts on shareholders.
Nonetheless, they have also been welcomed as a positive step towards simplifying and providing consistency in corporate crime offence as there is sufficient flexibility and discretion afforded to the sentencing judge under these guidelines. Given the diverse and complex nature of corporate and business crime offences, such flexibility is for good reason.
The full guidelines can be viewed on the Sentencing Guidelines Council website (here)
If you or your company would like more information regarding corporate offences and the implications of the new sentencing guidelines call us today to discuss with one of our specialist criminal barristers on (020) 8123 9999 or email email@example.com