The Sentencing Council is the independent body responsible for developing sentencing guidelines which courts in England and Wales must follow when passing a sentence. The council consults on its proposed guidelines before they come into force and on any proposed changes to existing guidelines.
The Sentencing Council has built up a large body of sentencing guidelines and accompanying materials that are in use in courts throughout England and Wales. Every year, the council consults on amendments to guidelines.
The proposed changes included in the consultation relate to magistrates’ courts and the Crown Court.
In response to last year’s consultation (which included proposed changes to the environmental guideline for individuals), the Environment Agency raised the issue of fines where the offender is a VLO. The agency submitted that the current wording in guidelines for sentencing a VLO is too limited and that courts would benefit from more and clearer guidance. This submission was endorsed by the Secretary of State for Environment, Food & Rural Affairs.
The agency also drew attention to the fact that the majority of the VLO cases they prosecute are now being sentenced in the Magistrates’ Court rather than the Crown Court and expressed the view that it would be preferable for some of these cases to be committed to the Crown Court for sentence.
The council considered that it is undesirable for courts routinely to need to have recourse to case law in order to apply a sentencing guideline and that it would be useful to encapsulate the guidance given by the Court of Appeal on sentencing a VLO in the relevant guidelines so that the information is clear, accurate and readily available to all guideline users.
The current wording in the environmental guideline for organisations reads:
Very large organisations
Where a defendant company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence.
The proposal is to expand this to:
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Very large organisations Where an offending company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence. There is no precise level of turnover at which an organisation becomes “very large”. In the case of most organisations it will be obvious if it either is or is not very large. In the case of very large organisations the appropriate sentence cannot be reached by merely applying a mathematical formula to the starting points and ranges for large organisations. In setting the level of fine for a very large organisation the court must consider the seriousness of the offence, the purposes of sentencing (including punishment and deterrence) and the financial circumstances of the offending organisation. Regard should be had to the principles set out under “General principles in setting a fine” above and at steps 5 to 7 below. |
Particular regard should be had to making the fine proportionate to the means of the organisation, sufficiently large to constitute appropriate punishment, and sufficient to bring home to the management and shareholders the need for regulatory compliance.
There is similar wording relating to sentencing VLOs in Sentencing Council guidelines in relation to:
If adopted, the expanded wording would also be added to these guidelines (suitably adjusted to take account of different numbering of steps etc.).
The allocation of either way cases to magistrates’ courts or the Crown Court is governed by the Allocation guideline (produced by the Sentencing Council) and by Criminal Practice Directions (made by the Lord Chief Justice last updated in 2023). Matters relating to the Criminal Practice Directions and their application are outside the Council’s remit, but the Council did consider that it would be helpful for the Allocation guideline to cross refer to the relevant practice direction (see the Allocation section above).
As the proposed change to guidelines reflects current case law, the impact of the change is likely to be minimal. However, it is possible that the change could result in higher fines in a small number of cases and any business that may fall within the category of a very large organisation should be aware of the proposed changes.
The consultation ends on 27 November 2024.
For further information, please contact our business risk & regulation team.
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