Sentence first, verdict afterwards

Ah, you’ve got to love the Queen of Hearts and her unique grasp on judicial process.  Some months ago I mentioned that I had responded to a consultation by the UK’s Sentencing Council on proposed guidelines for corporate offences of fraud, bribery and money laundering.  In the manner of a caterpillar turning into a butterfly, those guidelines have now been published.  It’s not quite “Off with their heads!” (more’s the pity, I hear you mutter) but let’s have a look anyway.

As a magistrate I am reasonably familiar with the structure of sentencing guidelines, and in recent years they have been going through a rolling programme of update and restructuring.  In short, they are being organised as a series of steps that the sentencing bench works through in strict order – and in this case, there are ten steps to reaching the appropriate sentence for a corporate offence of fraud, bribery or money laundering:

1. Compensation for “any personal injury, loss or damage resulting from the offence”
2. Confiscation
3. Determining the offence category by weighing up the level of culpability and the level of harm – as these are all financial crimes, harm will be the “amount obtained or intended to be obtained (or loss avoided or intended to be avoided)“.  For money laundering specifically, “the appropriate figure will normally be the amount laundered or, alternatively, the likely cost avoided by failing to put in place an effective anti-money laundering programme if this is higher”.  For all offences, “in the absence of sufficient evidence of the amount that was likely to be obtained, 10-20% of the relevant revenue may be an appropriate measure“.
4. Starting point and category range: “The harm figure at step three is multiplied by the relevant percentage figure representing culpability” and then adjusted within the category range for aggravating or mitigating factors – giving a result of anything between 20% and 400% of the original harm figure
5. Adjustment of fine: at this point, “the court should ‘step back’ and consider the overall effect of its orders.  The combination of orders made, compensation, confiscation and fine ought to achieve: the removal of all gain; appropriate additional punishment; and deterrence.”
6. Consider factors that might reduce the sentence, e.g. assistance given to the prosecution
7. Reduction for guilty pleas
8. Any ancillary orders, e.g. costs
   
9. Totality principle – if sentencing for more than one offence, is the total sentence “just and proportionate to the offending behaviour”
10. Reasons – the court is required to “give reasons for, and explain the effect of, the sentence“

It will be fascinating to watch the first sentencing exercises under this new regime – it will certainly keep the forensic accountants busy, trying to prove/disprove the numbers suggested.  And they should remember to curtsy while they’re thinking – it saves time, according to the Queen of Hearts.