Triable either way
Maximum: when tried on indictment: unlimited fine when tried summarily: unlimited fine
Offence range: £100 fine – £3 million fine
Use this guideline when the offender is an organisation. If the offender is an individual, please refer to the guideline for individuals.
Confiscation
Committal to the Crown Court for sentence is mandatory if confiscation (see step two) is to be considered: Proceeds of Crime Act 2002 section 70. In such cases magistrates should state whether they would otherwise have committed for sentence.
Financial orders must be considered in this order: (1) compensation, (2) confiscation, and (3) fine (see Proceeds of Crime Act 2002 section 13).
Also relevant, with adjustments, to certain related offences.
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 that are sentenced on or after 1 July 2014, regardless of the date of the offence.* Section 59(1) of the Sentencing Code provides that:
“Every court –
- must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and
- 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 four. In this guideline, if the proposed sentence is a fine, having identified a provisional sentence within the range at step four the court is required to consider a further set of factors that may require a final adjustment to the sentence. 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 nine 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 – Compensation
The court must consider making a compensation order requiring the offender to pay compensation for any personal injury, loss or damage resulting from the offence in such an amount as the court considers appropriate, having regard to the evidence and to the means of the offender.
Where the means of the offender are limited, priority should be given to the payment of compensation over payment of any other financial penalty.
Reasons should be given if a compensation order is not made. (See sections 55 and 133 to 135 of the Sentencing Code)
Step 2 – Confiscation
Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so.
Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 of the Proceeds of Crime Act 2002). This applies to summary only and either-way offences.
Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.
Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation).
(See Proceeds of Crime Act 2002 sections 6 and 13)
Step 3 – Determining the offence category
The court should determine the offence category using only the culpability and harm factors in the tables below. The culpability and harm categories are on a sliding scale; there is inevitable overlap between the factors described in adjacent categories. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category.
Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does. Risk of harm is less serious than the same actual harm. Where the offence has caused risk of harm but no (or less) actual harm the normal approach is to move down to the next category of harm. This may not be appropriate if either the likelihood or extent of potential harm is particularly high.
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.
Deliberate
Intentional breach of or flagrant disregard for the law by person(s) whose position of responsibility in the organisation is such that their acts/omissions can properly be attributed to the organisation;
OR
deliberate failure by organisation to put in place and to enforce such systems as could reasonably be expected in all the circumstances to avoid commission of the offence.
Reckless
Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken by person(s) whose position of responsibility in the organisation is such that their acts/ omissions can properly be attributed to the organisation;
OR
reckless failure by organisation to put in place and to enforce such systems as could reasonably be expected in all the circumstances to avoid commission of the offence.
Negligent
Failure by the organisation as a whole to take reasonable care to put in place and enforce proper systems for avoiding commission of the offence.
Low or no culpability
Offence committed with little or no fault on the part of the organisation as a whole, for example by accident or the act of a rogue employee and despite the presence and due enforcement of all reasonably required preventive measures, or where such proper preventive measures were unforeseeably overcome by exceptional events.
Harm
Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does. Risk of harm is less serious than the same actual harm. Where the offence has caused risk of harm but no (or less) actual harm the normal approach is to move down to the next category of harm. This may not be appropriate if either the likelihood or extent of potential harm is particularly high.
Where there are factors present from more than one category of harm, the court should weigh those factors in order to decide which category most resembles the offender’s case.
Category 1
- Polluting material of a dangerous nature, for example, hazardous chemicals or sharp objects
- Major adverse effect or damage to air or water quality, amenity value, or property
- Polluting material was noxious, widespread or pervasive with longlasting effects on human health or quality of life, animal health or flora
- Major costs incurred through clean-up, site restoration or animal rehabilitation
- Major interference with, prevention or undermining of other lawful activities or regulatory regime due to offence
Category 2
- Significant adverse effect or damage to air or water quality, amenity value, or property
- Significant adverse effect on human health or quality of life, animal health or flora
- Significant costs incurred through clean-up, site restoration or animal rehabilitation
- Significant interference with or undermining of other lawful activities or regulatory regime due to offence
- Risk of category 1 harm
Category 3
- Minor, localised adverse effect or damage to air or water quality, amenity value, or property
- Minor adverse effect on human health or quality of life, animal health or flora
- Low costs incurred through clean-up, site restoration or animal rehabilitation
- Limited interference with or undermining of other lawful activities or regulatory regime due to offence
- Risk of category 2 harm
Category 4
- Risk of category 3 harm
Step 4 – Starting point and category range
Having determined the category at step three, the court should use the corresponding starting point to reach a sentence within the category range in the drop down boxes below. There are four tables of starting points and ranges: one for large organisations, one for medium organisations, one for small organisations and one for micro-organisations. 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).
General principles to follow in setting a fine
The court should determine 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.
Obtaining financial information
Offenders which are companies, partnerships or bodies delivering a public or charitable service, are 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.
Normally, only information relating to the organisation before the court will be relevant, unless 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 defendant 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.
At step four, the court will be required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. At step six, the court may be required to refer to the other financial factors listed above to ensure that the proposed fine is proportionate.
Very large organisations
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 “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 depending on the seriousness of the offence, and sufficient to bring home to the management and shareholders the need for regulatory compliance.
| Large | Starting Point | Range |
|---|---|---|
| Deliberate | ||
| Category 1 | £1,000,000 | £450,000 – £3,000,000 |
| Category 2 | £500,000 | £180,000 – £1,250,000 |
| Category 3 | £180,000 | £100,000 – £450,000 |
| Category 4 | £100,000 | £55,000 – £250,000 |
| Reckless | ||
| Category 1 | £550,000 | £250,000 – £1,500,000 |
| Category 2 | £250,000 | £100,000 – £650,000 |
| Category 3 | £100,000 | £60,000 – £250,000 |
| Category 4 | £60,000 | £35,000 – £160,000 |
| Negligent | ||
| Category 1 | £300,000 | £140,000 – £750,000 |
| Category 2 | £140,000 | £60,000 – £350,000 |
| Category 3 | £60,000 | £35,000 – £150,000 |
| Category 4 | £35,000 | £22,000 – £100,000 |
| Low / No culpability | ||
| Category 1 | £50,000 | £25,000 – £130,000 |
| Category 2 | £25,000 | £14,000 – £70,000 |
| Category 3 | £14,000 | £10,000 – £40,000 |
| Category 4 | £10,000 | £7,000 – £25,000 |
| Medium | Starting Point | Range |
|---|---|---|
| Deliberate | ||
| Category 1 | £400,000 | £170,000 – £1,000,000 |
| Category 2 | £170,000 | £70,000 – £450,000 |
| Category 3 | £70,000 | £40,000 – £180,000 |
| Category 4 | £40,000 | £22,000 – £100,000 |
| Reckless | ||
| Category 1 | £220,000 | £100,000 – £500,000 |
| Category 2 | £100,000 | £40,000 – £250,000 |
| Category 3 | £40,000 | £24,000 – £100,000 |
| Category 4 | £24,000 | £14,000 – £60,000 |
| Negligent | ||
| Category 1 | £120,000 | £55,000 – £300,000 |
| Category 2 | £55,000 | £25,000 – £140,000 |
| Category 3 | £25,000 | £14,000 – £60,000 |
| Category 4 | £14,000 | £8,000 – £35,000 |
| Low / No culpability | ||
| Category 1 | £20,000 | £10,000 – £50,000 |
| Category 2 | £10,000 | £5,500 – £25,000 |
| Category 3 | £5,000 | £3,500 – £14,000 |
| Category 4 | £3,000 | £2,500 – £10,000 |
| Small | Starting Point | Range |
|---|---|---|
| Deliberate | ||
| Category 1 | £100,000 | £45,000 – £400,000 |
| Category 2 | £45,000 | £17,000 – £170,000 |
| Category 3 | £17,000 | £10,000 – £70,000 |
| Category 4 | £10,000 | £5,000 – £40,000 |
| Reckless | ||
| Category 1 | £55,000 | £24,000 – £220,000 |
| Category 2 | £24,000 | £10,000 – £100,000 |
| Category 3 | £10,000 | £5,000 – £40,000 |
| Category 4 | £5,000 | £3,000 – £24,000 |
| Negligent | ||
| Category 1 | £30,000 | £13,000 – £120,000 |
| Category 2 | £13,000 | £6,000 – £55,000 |
| Category 3 | £6,000 | £3,000 – £23,000 |
| Category 4 | £3,000 | £1,500 – £14,000 |
| Low / No culpability | ||
| Category 1 | £5,000 | £2,500 – £20,000 |
| Category 2 | £2,500 | £1,000 – £10,000 |
| Category 3 | £1,000 | £700 – £5,000 |
| Category 4 | £700 | £400 – £3,500 |
| Micro | Starting Point | Range |
|---|---|---|
| Deliberate | ||
| Category 1 | £50,000 | £9,000 – £95,000 |
| Category 2 | £22,000 | £3,000 – £45,000 |
| Category 3 | £9,000 | £2,000 – £17,000 |
| Category 4 | £5,000 | £1,000 – £10,000 |
| Reckless | ||
| Category 1 | £30,000 | £3,000 – £55,000 |
| Category 2 | £12,000 | £1,500 – £24,000 |
| Category 3 | £5,000 | £1,000 – £10,000 |
| Category 4 | £3,000 | £500 – £5,500 |
| Negligent | ||
| Category 1 | £15,000 | £1,500 – £30,000 |
| Category 2 | £6,500 | £1,000 – £13,000 |
| Category 3 | £2,500 | £500 – £5,500 |
| Category 4 | £1,400 | £350 – £3,000 |
| Low / No culpability | ||
| Category 1 | £2,500 | £500 – £5,000 |
| Category 2 | £1,000 | £350 – £2,400 |
| Category 3 | £400 | £175 – £1,000 |
| Category 4 | £200 | £100 – £700 |
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
- History of non-compliance with warnings by regulator
- Location of the offence, for example, near housing, schools, livestock or environmentally sensitive sites
- Repeated incidents of offending or offending over an extended period of time, where not charged separately
- Deliberate concealment of illegal nature of activity
- Ignoring risks identified by employees or others
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 offender has had the benefit of warnings or advice about their conduct but has failed to heed it, this would make the offender more blameworthy.
This may particularly be the case when:
- such warning(s) or advice were of an official nature or from a professional source and/or
- the warning(s) were made at the time of or shortly before the commission 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/or lack of maturity when considering the significance of this factor.
- Established evidence of wider/community impact
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
- This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
- For issues of prevalence see the separate guidance below:
Prevalence
- Sentencing levels in offence specific guidelines take account of collective social harm. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community.
- It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in this area'.
- First, there must be evidence provided to the court by a responsible body or by a senior police officer.
- Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
- Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied
- that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
- that the circumstances can properly be described as exceptional; and
- that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
- Breach of any 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
- Commission of an offence while subject to a relevant court order makes the offence more serious.
- The extent to which the offender has complied with the conditions of an 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 an 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.
- Offence committed for financial gain
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.
- 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.
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 to remedy problem
- Remorse
Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).
Lack of remorse should never be treated as an aggravating factor.
Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient.
The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:
- nervousness
- a lack of understanding of the system
- mental disorder
- learning disabilities
- communication difficulties (including where English is not their first language)
- a belief that they have been or will be discriminated against
- peer pressure to behave in a certain way because of others present
- age and/or a lack of maturity etc.
If a PSR has been prepared it may provide valuable assistance in this regard.
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.
- Compensation paid voluntarily to remedy harm caused
- One-off event not commercially motivated
- Little or no financial gain
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 offence (which is not one which by its nature is an acquisitive offence) is committed in a context where financial gain could arise, the culpability of the offender may be reduced where it can be shown that the offender did not seek to gain financially from the conduct and did not in fact do so.
- Effective compliance and ethics programme
- 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).
- Positive character and/or exemplary conduct (regardless of previous convictions)
Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.
This factor may apply whether or not the offender has previous convictions.
However:
- This factor is less likely to be relevant where the offending is very serious
- Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
Steps 5 to 7
The court should now ‘step back’ and, using the factors set out in steps five, six and seven, review whether the sentence as a whole meets, in a fair way, the objectives of punishment, deterrence and removal of gain derived through the commission of the offence. At steps five to seven, the court may increase or reduce the proposed fine reached at step four, if necessary moving outside the range.
Step 5 – Ensure that the combination of financial orders (compensation, confiscation if appropriate, and fine) removes any economic benefit derived from the offending
The court should remove any economic benefit the offender has derived through the commission of the offence including:
- avoided costs;
- operating savings;
- any gain made as a direct result of the offence.
Where the offender is fined, the amount of economic benefit derived from the offence should normally be added to the fine arrived at in step four. If a confiscation order is made, in considering economic benefit, the court should avoid double recovery.
Economic benefit will not always be an identifiable feature of a case. For example, in some water pollution cases there may be strict liability but very little obvious gain. However, even in these cases there may be some avoidance of cost, for example alarms not installed and maintained, inadequate bunding or security measures not installed. Any costs avoided will be considered as economic benefit.
Where it is not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.
Step 6 – Check whether the proposed fine based on turnover is proportionate to the means of the offender
The combination of financial orders must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance. 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.
It will be necessary to examine the financial circumstances of the organisation in the round. 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.
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.
Step 7 – Consider other factors that may warrant adjustment of the proposed fine
The court should consider any further factors that are relevant to ensuring that the proposed fine is proportionate having regard to the means of the offender and the seriousness of the offence.
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 their services.
The non-exhaustive list below contains additional factual elements the court should consider in deciding whether an increase or reduction to the proposed fine is required:
- fine impairs offender’s ability to make restitution to victims;
- impact of fine on offender’s ability to improve conditions in the organisation to comply with the law;
- impact of fine on employment of staff, service users, customers and local economy.
Step 8 – 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 9 – 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 10 – Ancillary orders
In all cases, the court must consider whether to make ancillary orders. These may include:
Forfeiture of vehicle
The court may order the forfeiture of a vehicle used in or for the purposes of the commission of the offence in accordance with section 33C of the Environmental Protection Act 1990.
Deprivation of property
Where section 33C of the Environmental Protection Act 1990 does not apply, the court may order the offender to be deprived of property used to commit crime or intended for that purpose in accordance with section 153 of the Sentencing Code. In considering whether to make an order under section 153, the court must have regard to the value of the property and the likely effects on the offender of making the order taken together with any other order the court makes (section 155 of the Sentencing Code).
Remediation
Where an offender is convicted of an offence under regulation 38(1), (2) or (3) of the Environmental Permitting (England and Wales) Regulations 2010, a court may order the offender to take steps to remedy the cause of the offence within a specified period in accordance with regulation 44 of the Environmental Permitting (England and Wales) Regulations 2010.
Step 11 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. See Totality guideline.
Step 12 – Reasons
Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.
Other environmental offences
In sentencing other relevant and analogous environmental offences, the court should refer to the sentencing approach in steps one to three and five to seven of the guideline, adjusting the starting points and ranges bearing in mind the statutory maxima for those offences.
Refer to Environmental offences (other) for an indicative list of such offences.