Sentencing

The Sentencing Council has published guidelines for the sentencing of both individuals and corporates for fraud, bribery and money laundering offences (the Guidelines).

The Guidelines set out the following key processes for determining the appropriate sanction for corporate offenders:

In respect of determining the final level of fine, the Guidelines note that the intention is that any fine “must be substantial enough to have a real economic impact which will bring home to both management and shareholders the need to operate within the law.  Whether the fine would have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence.”

The level of fine may then be reduced for providing assistance and/or for pleading guilty.

Aggravating Factors

These may include:

• attempts to conceal the misconduct
• substantial harm caused to the integrity or confidence of markets and/or
• the offence being committed across borders or jurisdictions.

Mitigating Factors

These may include:

• victims being voluntarily reimbursed/compensated
• there being no actual loss to victims and/or
• early active co-operation with the authorities (particularly in complex cases).

Early Admissions

When imposing a sentence following a guilty plea, the court must take into account the stage at which an intention to plead guilty was indicated and the circumstances in which that indication was given.

If the guilty plea is entered at the first reasonable opportunity, a reduction of one third should be given.  The first reasonable opportunity to enter such plea would usually be at the defendant’s first appearance before the court.  However, for indictable only offences, it may be that the court considers the first reasonable opportunity may have been at the police station.

Pleas at later stages in the proceedings may be given credit on a reducing scale, for example, up to one tenth reduction should be available for guilty pleas entered during trial.

Co-Operation

The court also has discretion to reduce a defendant’s sentence where:

• they entered a guilty plea
• they are sentenced in the Crown Court; and
• they have, pursuant to a written agreement with a specified prosecutor, assisted or offered to assist the investigator or prosecutor in relation to that or any other offence.

When passing sentence, the court may take into account the extent and the nature of the assistance given or offered.  It is for the court to decide what level of sentence reduction to apply, but the normal level of reduction is somewhere between one half and two thirds (R v P; R v Blackburn [2007] EWCA Crim 2290).