As I mentioned a few days ago, the UK’s Sentencing Council – the body which produces sentencing guidelines for the UK courts – is currently running a consultation on guidelines for the offences of fraud, bribery and money laundering. Yesterday was my Day for Consultations (I had five to read and three to submit) and so I finally got around to studying the detail of the government’s proposals. I’m familiar with sentencing guidelines from my work as a magistrate, but it is a bit convoluted. For each offence, the guideline sets out the elements of the offence, then asks the sentencing bench/judge to assess the culpability of the offender and the harm caused by the offence. This gives you the “starting point” sentence. You then adjust that by considering any aggravating features, any mitigating ones, and whether the defendant has pleaded guilty (which always reduces the sentence). Finally, if the defendant is being sentenced for more than one offence, you check that the “totality” of the sentence is just and proportionate. And you thought we just clapped them all in irons.
For me, the interesting part of sentencing is always aggravation/mitigation – this is the bit that could not be done by a computer (but don’t think for one moment that certain elements of the government have not suggested it…). Sentencing guidelines give examples of things that might be admitted as aggravating or mitigating factors – and part of this consultation involves commenting on the current suggestions. For instance, for money laundering, you have the standard aggravating factors (these apply to all offences: previous convictions, and committing the offence while on bail) and then the specific ones, including: attempts to conceal/dispose of evidence; failure to comply with current court orders; offences committed across borders; and blame wrongly placed on others. But it’s mitigation that we in the world of AML need to look at most carefully – after all, we are better placed than most to know about money launderers and their impact on our communities. Are we happy that sentencing benches/judges should be guided to reduce sentences for these reasons? Among the mitigating factors suggested are these:
- Good character and/or exemplary conduct
- Serious medical condition requiring urgent, intensive or long-term treatment
- Sole or primary carer for dependent relatives
- Early active co-operation particularly in complex cases
- Determination and/or demonstration of steps having been taken to address offending behaviour
- Activity originally legitimate
Do you think that a money launderer exhibiting several of those characteristics should be given leniency? Or are they simply a standard disguise for your professional launderer? As I said before, sentencing really matters, as it’s the end-game for all of our AML efforts. So get responding to this consultation, or your own local equivalent whenever it comes up.