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New Sentencing Guidelines in respect of “White Collar Crime”.

03 Feb 2015

New Sentencing Guidelines in respect of “White Collar Crime”.

On 1st October 2014, the new definitive sentencing guidelines on fraud, bribery and money laundering came into effect. Steve Roberts, Partner at Richard Nelson LLP takes a look at the impact of the new sentencing guidelines.

The New Sentencing Guidelines in relation to Fraud, Bribery and Money Laundering came into effect on 1st October 2014 dealing with offences which are sentenced on or after 1st October 2014.

Interestingly, the new sentencing guidelines are the first which give specific guidelines for sentencing Corporate offenders. There are separate sentencing guidelines for individuals and Corporate offenders. In this article, we will look at how the sentencing guidelines are structured and applied in each instance.

Individuals Over Age of 18

Only affects those over 18. Younger offenders are sentenced according to the general principles contained within the Sentencing Guidelines Council’s guidelines “Overarching Principles – Sentencing Youths”.

8 stage process for sentencing

  1. Determine the offence category
  2. Starting Point & Category Range
  3. Consider any factors which indicate a reduction, such as assistance to the prosecution
  4. Reduction for guilty pleas
  5. Totality Principle
  6. Confiscation, compensation and ancillary orders
  7. Reasons
  8. Consideration for time spent on bail

The process adopted in respect of individuals is very similar to those adopted in other sentencing guidelines. The Court is required to first determine the seriousness of the offence and seek the appropriate starting point and category range. The starting point is then reduced accordingly taking into account factors which should indicate a reduction and reducing the sentence accordingly if the Defendant has pleaded guilty. (The credit as always diminishes the closer to trial the Defendant pleaded). Once a sentence has been considered, the Court then determines the global sentence which is particularly relevant in cases where there is more than offence being sentenced or where the Defendant is already serving a sentence. After imposing the sentence in respect of the offence (whether it be custodial, community based or a financial or other primary band sentence), the Court moves on to consider whether to make a Confiscation order or other order for Compensation. As is always the case in sentencing of offenders, the new sentencing guidelines place an obligation on the Court to explain their reasons in sentencing the Defendant. Finally, the Court will take into account the time spent on bail by the Defendant and is able to give credit where a considerable time has been spent awaiting sentence (particularly where the delays are not attributable to any actions of the Defendant).

Corporations

Covers not just corporations but other organisations or bodies (including partnerships and charities).

Where a corporation is being sentenced, there is a 10 stage process for sentencing:

  1. Compensation
  2. Confiscation
  3. Determining the offence category
  4. Starting point and category range
  5. Adjustment of fine
  6. Consider any factors which would indicate a reduction, such as assistance to the prosecution
  7. Reduction for guilty pleas
  8. Ancillary Orders
  9. Totality Principle
  10. Reasons

Again, this is a very similar process to that made in respect of individual offenders, albeit in a different order. It is interesting to note that where a organisation is involved, the first stage in the process is to compensate the victim as opposed to the sentencing of individuals which involves imposing a sentence on the offender prior to considering compensation. Presumably this is because an organisation can only be fined (rather than imprisoned) and so compensation must take priority over a fine if the offending organisation is of limited means. Again, the procedures place confiscation above the actual fining of the company presumably to ensure that the organisation is stripped of its benefit from the criminal activity before it pays any fine.

Looking at the operation of this in principle, where a offending organisation is able to repay the victims of its crimes, it could be said to have repaid the particular benefit it received and by the terms of Waya, double recovery of particular benefit would be disproportionate. (Possibly meaning that any confiscation proceedings should simply deal with any benefit arising from the operation of the assumptions under POCA which cannot be rebutted by the offending organisation).

It will be interesting to monitor how the new sentencing guidelines work in practice, particularly when dealing with corporations in light of the new specific regime in respect of Corporate Offenders.

If you need any further information in respect of the new sentencing guidelines for fraud, bribery and money laundering, please do not hesitate to contact one of our expert solicitors for a confidential telephone conversation or by emailing us at help@rnllp.co.uk. Additionally, you can read our dedicated fraud and commercial law service pages.

 

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