Triable either way
Maximum:
- when tried on indictment: unlimited fine
- when tried summarily: unlimited fine
Offence range: £50 fine – £10 million fine
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all organisations, who are sentenced on or after 1 February 2016, regardless of the date of the offence.* Section 59(1) of the Sentencing Code provides that: “Every court – (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.” Structure, ranges and starting points For the purposes of section 60 of the Sentencing Code, the guideline specifies offence ranges – the range of sentences appropriate for each type of offence. Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category. Starting points define the position within a category range from which to start calculating the provisional sentence. The court should consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including the aggravating and mitigating factors set out at step two. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step six in the decision making process, after the appropriate sentence has been identified. *The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.
Step 1 – Determining the offence category
The court should determine the offence category with reference only to the factors in the tables below. In order to determine the category the court should assess culpability and harm.
Culpability
Where there are factors present from more than one category of culpability, the court should weigh those factors in order to decide which category most resembles the offender’s case.
Very high
- Deliberate breach of or flagrant disregard for the law
High
- Offender fell far short of the appropriate standard for example, by:
- failing to put in place measures that are recognised standards in the industry;
- ignoring concerns raised by employees or others;
- failing to make appropriate changes following prior incident(s) exposing risks to health and safety;
- allowing breaches to subsist over a long period of time.
- Serious and/or systemic failure within the organisation to address risks to health and safety
Medium
- Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories
- Systems were in place but these were not sufficiently adhered to or implemented
Low
- Offender did not fall far short of the appropriate standard; for example, because:
- significant efforts were made to address the risk although they were inadequate on this occasion;
- there was no warning/circumstance indicating a risk to health and safety
- Failings were minor and occurred as an isolated incident
Harm
Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm. The offence is in creating a risk of harm.
1) Use the table below to identify an initial harm category based on the risk of harm created by the offence. The assessment of harm requires a consideration of both: – the seriousness of the harm risked (A, B or C) by the offender’s breach; and – the likelihood of that harm arising (high, medium or low).
| Seriousness of harm risked | |||
Level A
|
Level B
|
Level C
|
|
| High likelihood of harm | Harm category 1 | Harm category 2 | Harm category 3 |
|---|---|---|---|
| Medium likelihood of harm | Harm category 2 | Harm category 3 | Harm category 4 |
| Low likelihood of harm | Harm category 3 | Harm category 4 | Harm category 4 (start towards bottom of range) |
2) Next, the court must consider if the following factors apply. These two factors should be considered in the round in assigning the final harm category.
i) Whether the offence exposed a number of workers or members of the public to the risk of harm. The greater the number of people, the greater the risk of harm.
ii) Whether the offence was a significant cause of actual harm. Consider whether the offender’s breach was a significant cause* of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable.
If one or both of these factors apply the court must consider either moving up a harm category or substantially moving up within the category range at step two overleaf. If already in harm category 1 and wishing to move higher, move up from the starting point at step two on the following pages. The court should not move up a harm category if actual harm was caused but to a lesser degree than the harm that was risked, as identified on the scale of seriousness above.
* A significant cause is one which more than minimally, negligibly or trivially contributed to the outcome. It does not have to be the sole or principal cause.
Step 2 – Starting point and category range
Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range in the table below. The starting point applies to all offenders irrespective of plea or previous convictions.
An adjustment from the starting point, upwards or downwards, may be necessary to reflect particular features of culpability and/or harm (for example, the presence of multiple factors within one category, the presence of factors from more than one category (where not already taken into account at step 1), or where a case falls close to a borderline between categories).
At step two, the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine.
At step three, the court may be required to refer to other financial factors listed below to ensure that the proposed fine is proportionate.
Obtaining financial information
The offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case, which may include the inference that the offender can pay any fine.
Normally, only information relating to the organisation before the court will be relevant, unless exceptionally it is demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account.
- For companies: annual accounts. Particular attention should be paid to turnover; profit before tax; directors’ remuneration, loan accounts and pension provision; and assets as disclosed by the balance sheet. Most companies are required to file audited accounts at Companies House. Failure to produce relevant recent accounts on request may properly lead to the conclusion that the company can pay any appropriate fine.
- For partnerships: annual accounts. Particular attention should be paid to turnover; profit before tax; partners’ drawings, loan accounts and pension provision; assets as above. Limited liability partnerships (LLPs) may be required to file audited accounts with Companies House. If adequate accounts are not produced on request, see paragraph 1.
- For local authorities, fire authorities and similar public bodies: the Annual Revenue Budget (‘ARB’) is the equivalent of turnover and the best indication of the size of the organisation. It is unlikely to be necessary to analyse specific expenditure or reserves (where relevant) unless inappropriate expenditure is suggested.
- For health trusts: the independent regulator of NHS Foundation Trusts is Monitor. It publishes quarterly reports and annual figures for the financial strength and stability of trusts from which the annual income can be seen, available via the Monitor website. Detailed analysis of expenditure or reserves is unlikely to be called for.
- For charities: it will be appropriate to inspect annual audited accounts. Detailed analysis of expenditure or reserves is unlikely to be called for unless there is a suggestion of unusual or unnecessary expenditure.
Very large organisation
Where an offending company’s turnover or equivalent very greatly exceeds the threshold for large companies, courts should consider fines outside the range 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 with reference to the culpability and harm factors above and the aggravating and mitigating factors below, 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 at steps 3 and 4 below.
Particular regard should be had to making the fine proportionate to the means of the organisation, sufficiently large to constitute appropriate punishment depending on the seriousness of the offence, and sufficient to bring home to the management and shareholders the need to comply with health and safety legislation.
| Large | Starting Point | Range |
|---|---|---|
| Very high culpability | ||
| Harm category 1 | £4,000,000 | £2,600,000 – £10,000,000 |
| Harm category 2 | £2,000,000 | £1,000,000 – £5,250,000 |
| Harm category 3 | £1,000,000 | £500,000 – £2,700,000 |
| Harm category 4 | £500,000 | £240,000 – £1,300,000 |
| High culpability | ||
| Harm category 1 | £2,400,000 | £1,500,000 – £6,000,000 |
| Harm category 2 | £1,100,000 | £550,000 – £2,900,000 |
| Harm category 3 | £540,000 | £250,000 – £1,450,000 |
| Harm category 4 | £240,000 | £120,000 – £700,000 |
| Medium culpability | ||
| Harm category 1 | £1,300,000 | £800,000 – £3,250,000 |
| Harm category 2 | £600,000 | £300,000 – £1,500,000 |
| Harm category 3 | £300,000 | £130,000 – £750,000 |
| Harm category 4 | £130,000 | £50,000 – £350,000 |
| Low culpability | ||
| Harm category 1 | £300,000 | £180,000 – £700,000 |
| Harm category 2 | £100,000 | £35,000 – £250,000 |
| Harm category 3 | £35,000 | £10,000 – £140,000 |
| Harm category 4 | £10,000 | £3,000 – £60,000 |
| Medium | Starting Point | Range |
|---|---|---|
| Very high culpability | ||
| Harm category 1 | £1,600,000 | £1,000,000 – £4,000,000 |
| Harm category 2 | £800,000 | £400,000 – £2,000,000 |
| Harm category 3 | £400,000 | £180,000 – £1,000,000 |
| Harm category 4 | £190,000 | £90,000 – £500,000 |
| High culpability | ||
| Harm category 1 | £950,000 | £600,000 – £2,500,000 |
| Harm category 2 | £450,000 | £220,000 – £1,200,000 |
| Harm category 3 | £210,000 | £100,000 – £550,000 |
| Harm category 4 | £100,000 | £50,000 – £250,000 |
| Medium culpability | ||
| Harm category 1 | £540,000 | £300,000 – £1,300,000 |
| Harm category 2 | £240,000 | £100,000 – £600,000 |
| Harm category 3 | £100,000 | £50,000 – £300,000 |
| Harm category 4 | £50,000 | £20,000 – £130,000 |
| Low culpability | ||
| Harm category 1 | £130,000 | £75,000 – £300,000 |
| Harm category 2 | £40,000 | £14,000 – £100,000 |
| Harm category 3 | £14,000 | £3,000 – £60,000 |
| Harm category 4 | £3,000 | £1,000 – £10,000 |
| Small | Starting Point | Range |
|---|---|---|
| Very high culpability | ||
| Harm category 1 | £450,000 | £300,000 – £1,600,000 |
| Harm category 2 | £200,000 | £100,000 – £800,000 |
| Harm category 3 | £100,000 | £50,000 – £400,000 |
| Harm category 4 | £50,000 | £20,000 – £190,000 |
| High culpability | ||
| Harm category 1 | £250,000 | £170,000 – £1,000,000 |
| Harm category 2 | £100,000 | £50,000 – £450,000 |
| Harm category 3 | £54,000 | £25,000 – £210,000 |
| Harm category 4 | £24,000 | £12,000 – £100,000 |
| Medium culpability | ||
| Harm category 1 | £160,000 | £100,000 – £600,000 |
| Harm category 2 | £54,000 | £25,000 – £230,000 |
| Harm category 3 | £24,000 | £12,000 – £100,000 |
| Harm category 4 | £12,000 | £4,000 – £50,000 |
| Low culpability | ||
| Harm category 1 | £45,000 | £25,000 – £130,000 |
| Harm category 2 | £9,000 | £3,000 – £40,000 |
| Harm category 3 | £3,000 | £700 – £14,000 |
| Harm category 4 | £700 | £100 – £5,000 |
| Micro | Starting Point | Range |
|---|---|---|
| Very high culpability | ||
| Harm category 1 | £250,000 | £150,000 – £450,000 |
| Harm category 2 | £100,000 | £50,000 – £200,000 |
| Harm category 3 | £50,000 | £25,000 – £100,000 |
| Harm category 4 | £24,000 | £12,000 – £50,000 |
| High culpability | ||
| Harm category 1 | £160,000 | £100,000 – £250,000 |
| Harm category 2 | £54,000 | £30,000 – £110,000 |
| Harm category 3 | £30,000 | £12,000 – £54,000 |
| Harm category 4 | £12,000 | £5,000 – £21,000 |
| Medium culpability | ||
| Harm category 1 | £100,000 | £60,000 – £160,000 |
| Harm category 2 | £30,000 | £14,000 – £70,000 |
| Harm category 3 | £14,000 | £6,000 – £25,000 |
| Harm category 4 | £6,000 | £2,000 – £12,000 |
| Low culpability | ||
| Harm category 1 | £30,000 | £18,000 – £60,000 |
| Harm category 2 | £5,000 | £1,000 – £20,000 |
| Harm category 3 | £1,200 | £200 – £7,000 |
| Harm category 4 | £200 | £50 – £2,000 |
The tables below contain a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in a further upward or downward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
Factors increasing seriousness
Statutory aggravating factors
- Previous convictions,having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
Effective from: 01 April 2023
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
Guidance on the use of previous convictions
The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:
- Previous convictions are considered only after the starting point for the sentence has been reached.
- The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
- For sentencing purposes, previous convictions are normally relevant to the current offence when they are of a similar type.
- Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
- Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence.
- When considering the number and frequency of previous convictions it may be relevant to consider the size of the offending organisation. For example, a large organisation with multiple sites may be more likely to have previous convictions than a smaller organisation with only one site.
- The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
- Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
- The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
- Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
- When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
Other aggravating factors include
- Cost-cutting at the expense of safety
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- Where an offence (which is not one which by its nature is an acquisitive offence) has been committed wholly or in part for financial gain or the avoidance of cost, this will increase the seriousness.
- Where the offending is committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability.
- examples would include, but are not limited to, dealing in unlawful goods, failing to disclose relevant matters to an authority or regulator, failing to comply with a regulation or failing to obtain the necessary licence or permission in order to avoid costs.
- offending of this type can undermine legitimate businesses.
- See the guidance on fines if considering a financial penalty.
- Deliberate concealment of illegal nature of activity
- Breach of any court order
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
- The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
- Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
- Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Obstruction of justice
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.
Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
- Poor health and safety record
- Falsification of documentation or licences
- Deliberate failure to obtain or comply with relevant licences in order to avoid scrutiny by authorities
- Targeting vulnerable victims
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence
- An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
- Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
- The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
- Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
- Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
- Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
- The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
Factors reducing seriousness or reflecting mitigation
- No previous convictions or no relevant/recent convictions
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
- First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
- Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
- When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
- Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
- Evidence of steps taken voluntarily to remedy problem
- High level of co-operation with the investigation, beyond that which will always be expected
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).
- Good health and safety record
- Effective health and safety procedures in place
- Self-reporting, co-operation and acceptance of responsibility
Effective from: 01 October 2019
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction).
Steps 3 and 4
The court should ‘step back’, review and, if necessary, adjust the initial fine based on turnover to ensure that it fulfils the objectives of sentencing for these offences. The court may adjust the fine upwards or downwards, including outside the range.
Step 3 – Check whether the proposed fine based on turnover is proportionate to the overall means of the offender
General principles to follow in setting a fine
The court should finalise the appropriate level of fine in accordance with section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and requires the court to take into account the financial circumstances of the offender.
The level of fine should reflect the extent to which the offender fell below the required standard. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions.
The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.
Review of the fine based on turnover
The court should ‘step back’, review and, if necessary, adjust the initial fine reached at step two to ensure that it fulfils the general principles set out above. The court may adjust the fine upwards or downwards including outside of the range.
The court should examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purposes of sentencing.
In finalising the sentence, the court should have regard to the following factors:
- The profitability of an organisation will be relevant. If an organisation has a small profit margin relative to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.
- Any quantifiable economic benefit derived from the offence, including through avoided costs or operating savings, should normally be added to the fine arrived at in step two. Where this is not readily available, the court may draw on information available from enforcing authorities and others about the general costs of operating within the law.
- Whether the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence.
In considering the ability of the offending organisation to pay any financial penalty, the court can take into account the power to allow time for payment or to order that the amount be paid in instalments, if necessary over a number of years.
Step 4 – Consider other factors that may warrant adjustment of the proposed fine
The court should consider any wider impacts of the fine within the organisation or on innocent third parties; such as (but not limited to):
- the fine impairs offender’s ability to make restitution to victims;
- impact of the fine on offender’s ability to improve conditions in the organisation to comply with the law;
- impact of the fine on employment of staff, service users, customers and local economy (but not shareholders or directors).
Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.
Step 5 – Consider any factors which indicate a reduction, such as assistance to the prosecution
The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Case law has established that there are no inflexible rules as to the method by which any reduction should be assessed nor the amount of the reduction. It will be a fact specific decision in each case. The rationale for making a reduction is the same whether the statutory procedure or the common law “text” procedure has been engaged. In principle, there is no reason to distinguish between the two procedures in terms of the extent of the reduction which is made. See also the relevant Criminal Procedure Rules: CPR 28.11 (statutory procedure) CPR 28.12 (text procedure).
The following sequence of matters for a sentencing court to consider reflects case law:
- The court should assess the seriousness of the offences being sentenced following any relevant sentencing guidelines.
- The court should then consider the quality and quantity of the material provided by the offender in the investigation and subsequent prosecution of crime. The court should take into account the period of time over which the information was provided and the seriousness of the offending to which it relates. Particular value should be attached to those cases where the offender provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, especially where the information either produces convictions for the most serious offences, or prevents them, or which leads to disruption of major criminal networks. In cases where it is too early to say what impact the information will have, the Court should take into account the potential value of the information provided.
- This consideration should be made in the context of the nature and extent of the personal risks to, and potential consequences faced by, the offender and members of the offender’s family.
- A guilty plea is not an essential prerequisite of the making of a reduction for information and assistance provided, but contesting guilt may be one of the factors relevant to the extent of the reduction made for that assistance. The extent to which an offender has been prepared to admit the full extent of their criminality is relevant to the level of the reduction.
- Any reduction for a guilty plea is separate from and additional to the appropriate reduction for assistance provided by the offender. The reduction for the assistance provided by the offender should be assessed first to arrive at a notional sentence and any guilty plea reduction applied to that notional sentence.
- A mathematical approach to determining the level of reduction for assistance to the authorities is liable to produce an inappropriate answer – the totality principle is fundamental.
- Where the statutory procedure applies, the court should take into account that this requires offenders to reveal the whole of their previous criminal activities which will often entail pleading guilty to offences which the offender would never otherwise have faced.
- An informer can generally only expect to receive credit once for past information or assistance, and for that reason the court should be notified whether particular information and assistance has been taken into account in imposing a previous sentence or when making an application to the Parole Board.
- The court should enquire whether an offender has received payment for assistance provided and if so, how much. Financial reward and a reduction in sentence are complementary means of incentivising the disclosure of the criminal activities of others and therefore a financial reward, unless exceptionally generous, should play only a small, if any, part in the sentencer’s decision.
- The totality principle is critical in the context of an offender who is already serving a sentence, and who enters into an agreement to provide information which discloses previous criminal activities and comes before the court to be sentenced for the new crimes, as well as for a review of the original sentence (under section 388 of the Sentencing Code).
- Where an offender has committed serious crimes, neither the statutory nor common law process provide immunity from punishment, and, subject to appropriate reductions, an appropriate sentence should be passed. By providing assistance to the authorities the offender is entitled to a reduction from the sentence which would otherwise be appropriate to reflect the assistance provided to the administration of justice, and to encourage others to do the same.
- It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed. The normal level for the provision of valuable information will be a reduction of somewhere between one half and two thirds of that sentence.
- In cases where the information provided was of limited value, the reduction may be less than one half and where the information given is unreliable, vague, lacking in practical utility or already known to the authorities, any reduction made will be minimal.
- The risk to an offender who provides information, and the importance of the public interest in encouraging criminals to inform on other criminals, will often mean that the court will not be able to make any explicit reference to the provision of information or the reduction of the sentence on that ground. The duty to give reasons for the sentence will be discharged in such cases by the judge stating that the court has considered all the matters of mitigation which have been brought to its attention. See also CPR 28.12(4).
Step 6 – Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline.
Step 7 – Compensation and ancillary orders
In all cases, the court must consider whether to make ancillary orders. These may include:
Remediation
Under section 42(1) of the Health and Safety at Work Act 1974, the court may impose a remedial order in addition to or instead of imposing any punishment on the offender.
An offender ought by the time of sentencing to have remedied any specific failings involved in the offence and if it has not, will be deprived of significant mitigation.
The cost of compliance with such an order should not ordinarily be taken into account in fixing the fine; the order requires only what should already have been done.
Forfeiture
Where the offence involves the acquisition or possession of an explosive article or substance, section 42(4) enables the court to order forfeiture of the explosive.
Compensation
Where the offence has resulted in personal injury, loss or damage, the court must consider whether to make a compensation order and must give reasons if it decides not to order compensation (Sentencing Code, s.55). The assessment of compensation in cases involving death or serious injury will usually be complex and will ordinarily be covered by insurance. In the great majority of cases the court should conclude that compensation should be dealt with in the civil courts, and should say that no order is made for that reason.
If compensation is awarded, priority should be given to the payment of compensation over payment of any other financial penalty where the means of the offender are limited.
Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, compensation and fine take priority over prosecution costs.
Step 8 – Totality principle
If sentencing an offender for more than one offence, consider whether the total sentence is just and proportionate to the offending behaviour in accordance with the Totality guideline.
Step 9 – Reasons
Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.