Sentencing guidelines for breach of Court Order offences
The Sentencing Council for England and Wales has recently announced it is entering a consultation period in respect of proposed guidelines for the sentencing of offences in connection with a breach of Court Order.
Guidelines provided by the Sentencing Council require Judges and Magistrates to adopt a prescribed process and procedure as specified when determining the appropriate sentence it seeks to impose for a criminal offence, thus seeking to ensure that a consistent sentencing approach is undertaken in respect of offences of a comparable nature. The Magistrates, at present, do not have at their disposal any such guidelines in respect of certain offences pertaining to a breach of a Court Order, for example where a Director has be disqualified from acting in such a capacity, and continues to do so whether directly or indirectly as a ‘shadow’ Director.
A survey conducted of 216 Magistrates and District Judges last year revealed that such participants desired comprehensive Sentencing Guidelines for breaches of orders, presented in a consistent format and clearly identifiable. The Sentencing Council’s proposal aims to address those concerns by introducing a definitive sentencing guidance on various breach of Court Order offences to ensure appropriate and consistent sanctions can be imposed where the purpose of a Court Order is being undermined by virtue of non-compliance.
The Sentencing Council’s proposals are set out in the ‘Breach Offences Guideline consultation document’. The proposals, following the standard structure of Magistrates Sentencing Guidelines, intend to direct the Magistrates to assess the culpability category of the offender and the harm level of the offence to identify a ‘starting point’ for sentencing. The Court then has the opportunity to consider the specific circumstances of the offence, including the merits and mitigation that is advanced, and thereafter has the discretion to either shift up or down from that within the applicable sentencing range.
In particular, The Sentencing Council has proposed such guidelines for the offence that arises as a result of the breach of a Director Disqualification Order.
A Director Disqualification Order excludes a person (including a corporate person who in law is a separate legal entity) from acting as a Director of or being concerned or taking part in the promotion, formation or management of any company. A person is criminally liable if they breach such an Order pursuant to the provisions of section 13 of the Company Directors Disqualification Act 1986 (“Act”).
Currently, those who breach a Disqualification Order under the relevant provisions of the Act are liable to be convicted on indictment for not more than a two year custodial sentence and/or an unlimited fine and on summary conviction to not more than a six months custodial sentence and/or an unlimited fine.
The Council are proposing a range of custodial sentences from 26 weeks to one year and six months, with the ‘starting point’ within this range to be determined by the ‘culpability’ category of the offence together with level of ‘harm’ caused as a result.
The proposal outlines two levels of ‘culpability’, category ‘A’ for flagrant breaches and category ‘B’ for all other breaches. It is proposed that the Court subsequently determine the level of harm caused, or intended to be caused by weighing up all of the case specific factors of the case. The highest category (of the three) of harm relates to breaches which result in significant risk of or actual serious financial loss (or harm) to a company or others.
It is significant that the guidance, for the first time, both in respect of Director Disqualification Orders and other breach offences contained in the proposal, includes an express focus on risk of harm opposed to the actual harm caused. This approach accords with one of the fundamental, and overarching, principles of Court Orders, namely to protect the public from potential harm either from specific types of offending or continuing criminal behaviour.
Therefore, The Sentencing Council have suggested, and proposed in the consultation, a one year custodial sentence as a ‘starting point’ for disqualified directors who flagrantly breach an Order which results in significant risk or actual serious financial loss or harm to the company or others. Whereas the Council suggest a 26 week custodial sentence ‘starting point’ for a flagrant breach of an order which results in very low risk or little or no financial loss to the company or others.
The Court of course has the discretion to impose a higher or lower custodial sentence (within the applicable range) than the starting point upon consideration of the specific facts of the case.
It is anticipated that the imposition of single definitive guidelines for breach offences will ensure that Magistrates adopt a consistent sentencing approach, and consequently, that defendants will have a clearer indication of the potential sentence that is likely to be imposed.
The consultation is due to last for a period of approximately 13 weeks, concluding on 25 January 2017, with a definitive guideline likely to be compiled very shortly thereafter. The proposed guideline is currently scheduled to come into effect as of 1 February 2017.
If you have any questions on anything covered in this article, please contact our Defence & Regulatory Team on 01603 610911, who will be happy to assist you.