UK: UK Issues Sentencing Guideline For Individuals Convicted Of White-Collar Offenses

In May the Sentencing Council for England and Wales issued a new guideline applicable to individuals convicted of fraud, bribery and money laundering offenses.1 Effective for sentences imposed on or after Oct. 1, 2014 (regardless of the date of the underlying offense), it represents the latest effort to ensure a consistent approach to the sentencing of white-collar offenses in courts in England and Wales, as well as the firstpublished guideline for sentencing in money laundering cases. Similar to the guideline published earlier this year for corporate offenses,2 the new guideline provides practitioners with a baseline against which to argue during plea negotiations and at sentencing for individual defendants.

APPLICABILITY OF THE NEW GUIDELINE

The new guideline is not mandatory, and courts are not required to adhere to it if doing so "would be contrary to the interests of justice"3 In this respect, the new guideline is comparable to the U.S. sentencing guidelines, which are "effectively advisory" for U.S. federal courts.4

The new guideline specifies offenses and category ranges for each offense. Offense ranges are defined as "the range of sentences appropriate for each type of offen[se]."5 As with the U.S. sentencing guidelines, categories (or degrees) within each offense are predicated on the seriousness of the crime. The offense range is accordingly divided into category ranges, which are "sentences appropriate for each level of seriousness."6 Each category includes a "starting point" that "define[s] the position within a category range from which to start calculating the provisional sentence."7 In this way, and similar to the guideline for corporate offenses, the new guideline sets forth a multi-step approach to sentencing.8

DETERMINATION OF OFFENSE CATEGORY

First, the new guideline directs courts to consider culpability and harm in determining the offense category. The level of culpability is calculated "by weighing up all the factors of the case to determine the defendant's role and the extent to which the offending was planned and the sophistication with which it was carried out."9

There are three categories of culpability: high, medium and lesser. These categories are based upon the defendant's motivation and role in the offense. Factors indicative of high culpability are largely similar to those relevant in fraud, bribery and money laundering cases. They include leadership in a group offense; exertion of influence or pressure to induce the participation of others; abuse of power, trust or responsibility; significant planning or sophistication of offense; activity occurring over a sustained period of time; a large number of victims; motivation of significant gain; and deliberate targeting of the victim on the basis of vulnerability.

Lesser culpability is more likely to be assigned to those who were coerced, intimidated or exploited into involvement; were not motivated by personal gain; were peripherally involved; did very little planning; or had limited awareness or understanding of the offense. Courts are advised to balance the various factors to determine the defendant's culpability if the case does not fall cleanly into one of the three categories.

In typical fraud cases, harm encompasses both "the actual, intended or risked loss" and the "level of harm caused to the victim(s) or others."10 Courts are instructed to consider loss, which is divided into categories based on monetary value. Next, courts are to consider the level of harm caused, or victim impact, to determine whether the crime should be "moved up to the corresponding point in the next category or further up the range of the initial category."11 There are three categories of victim impact: high, medium and lesser.

Where there is a "[s]erious detrimental effect on the victim" or the victim is "particularly vulnerable (due to factors including but not limited to age, financial circumstances, mental capacity)" the court is likely to find a high impact.12

Possessing, making or supplying articles (such as electronic computer programs or data, or machines used to manufacture counterfeit bank notes) for use in fraud, revenue fraud and benefit fraud all result in the application of slightly modified harm considerations. In a case that includes possessing, making or supplying articles for use in a fraud, harm is calculated by looking to a "greater versus lesser harms" chart and "weighing up all the factors of the case to determine the harm that would be caused if the article(s) were used to commit a substantive offence."13 For revenue fraud and benefit fraud, harm is determined by considering a list of categories based on monetary value.14

In money laundering cases, harm consists of both the value of the money laundered and "the level of harm associated with the underlying offen[se]."15 The value of the money laundered, which is to be considered first, is broken down into categories. The level of harm is then considered "to determine whether [the harm] warrants upward adjustment of the starting point within the range, or in appropriate cases, outside the range."16

In bribery cases, both actual harm and risk of harm are considered.17 Harm encompasses the impact of the offense and the actual or intended gain of the defendant. Offenses are divided into categories based on their actual harm. Crimes that have, among other impacts, a serious detrimental effect on individuals, the environment, government, business or public services fall into the most serious grouping (Category 1). Risk of harm involves "consideration of both the likelihood of harm occurring and the extent of it if it does."18 It uses the same category breakdown as actual harm, but it is considered less serious. Therefore, the guideline advises "mov[ing] to the next category of harm down."19

FACTORS AFFECTING SENTENCING

After determining the offense category, courts are to determine a sentence within a defined range, taking into account aggravating and mitigating factors. Aggravating factors include previous convictions, attempts to conceal evidence and failure to comply with court orders.20 Mitigating factors include remorse, good character, and the mental and physical condition of the defendant.21

If applicable, courts are also to consider whether the defendant assisted the investigator or prosecutor with the case or any other case pursuant to a written agreement, as well as any other laws that may serve to reduce the sentence by virtue of the defendant's cooperation with or assistance to law enforcement.

The guideline also states that courts should consider Section 144 of the Criminal Justice Act 200322 and the 2007 Reduction in Sentence for a Guilty Plea: Definitive Guideline23 to assess whether reduction is appropriate. Section 144 provides that, in determining the sentence of a defendant who has pleaded guilty, courts should consider the stage in the proceedings at which the defendant expressed an intent to plead guilty and the circumstances under which the plea occurred. Courts should also consider whether it is appropriate to give credit for time spent on bail, pursuant to Section 240A of the Criminal Justice Act 2003.24

Where the defendant is being sentenced for multiple offenses or is already serving a sentence, courts must examine "whether the total sentence is just and proportionate" based on an overall assessment of the defendant's criminal conduct. Finally, courts must "give reasons for, and explain the effect of, the sentence" pursuant to Section 174 of the Criminal Justice Act 2003.25

CONCLUSION

The new guideline provides a legal framework for practitioners to use during sentencing and plea negotiations.

While many of these factors (such as aggravating and mitigating factors) will be familiar to any lawyer that has advocated for a client at sentencing, the new guideline provides an enhanced framework from which counsel can develop arguments. For example, rather than simply arguing for leniency on the basis of the defendant's good character or the lack of effect on the alleged victim, counsel can now frame these arguments within the "lesser" culpability and victim impact categories. Similarly, when negotiating agreements with prosecutors, defense counsel can tie the new guideline's categories and offense ranges to the potential sentence that would result from a guilty plea.

Notwithstanding the enhanced legal framework established by the new guideline, courts retain broad discretion in issuing sentences. For example, imprisonment for a bribery conviction with the highest level of culpability could range from six months to eight years, depending on the category of harm. Accordingly, practitioners will continue to face significant challenges in advising their clients regarding the likely outcome of a judicial sentencing.

The new guideline may also make it more difficult to advocate for a sentence that is well below the new guideline's range. Practitioners will need to marshal compelling arguments supporting a downward departure, as the new guideline gives courts ample justification to issue sentences within the stated ranges.

Footnotes

1 Sentencing Council for England and Wales, Fraud, Bribery and Money Laundering OffencesDefinitive Guideline, (May 2014), available at http://sentencingcouncil.judiciary.gov.uk/docs/Fraud_bribery_and_money_laundering_offences_-_ Definitive_guideline.pdf .

2 See Bret Campbell, Adam Lurie, Joseph Moreno & Karen Woody, UK Guidelines Emphasis Importance of Robust Programs, Bloomberg BNA(Mar. 17, 2014), available at http://www. cadwalader.com/uploads/books/798c01d07d29 0dee281e92b606de65db.pdf.

3 Section 125(1), Coroners and Justice Act (2009).

4 See Campbell et al., supra note 2; United States v. Booker, 543 U.S. 220 (2005) (rendering the sentencing guidelines "effectively advisory" rather than mandatory).

5 Guideline, supra note 1, at 4.

6 Id.

7 Id.

8 See Campbell et al., supra note 2.

9 Guideline, supra note 1, at 6, 36, 42.

10 Id. at 7.

11 Id.

12 Id.

13 Id. at 14.

14 Id. at 20, 28.

15 Id. at 36.

16 Id.

17 Id. at 42.

18 Id.

19 Id.

20 Id. at 10, 16, 24, 32, 38, 44.

21 Id. at 11, 17, 25, 33, 39, 45.

22 Section 144 Criminal Justice Act 2003, available at http://www.legislation.gov.uk/ukpga/2003/44/contents .

23 Reduction in Sentence for a Guilty Plea: Definitive Guideline (July 2007), available at http://sentencingcouncil.judiciary.gov.uk/docs/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf . The guilty plea guideline provides further explanation of Section 144's application.

24 Guideline, supra note 1, at 11, 17, 25, 33, 39, 45.

25 Id.

Originally published in  WESTLAW JOURNAL - WHITE-COLLAR CRIME -  VOLUME 28, ISSUE 11 / AUGUST 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.