The Sentencing Council said that incorporating so-called 'expanded explanations' into its offence-specific guidelines would provide judges, magistrates and other court users with useful information relating to commonly-used factors, as well as improving transparency for victims, defendants and the wider public. The Sentencing Council is the independent body which develops the sentencing guidelines that courts in England and Wales must follow.
The proposals are designed to reflect and encourage current best practice rather than to alter the way in which sentencing of these offences is carried out. However, health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com, said that businesses facing prosecution for regulatory offences should be aware of the trend towards more transparency.
"The stated aim of the consultation is more transparency, and not to increase sentences, where courts are working to these explanations anyway," he said. "However, where they are not, or where there may be room for argument, the expanded explanations may well lead to sentences increasing where aggravating factors are now specifically directed to indicate a higher culpability level."
The Sentencing Council has proposed incorporating expanded explanations into its guidelines for sentencing both organisations and adult individuals in all offence-specific Sentencing Council guidelines including in the guidelines for health and safety and food safety and food hygiene cases. It is also proposing to incorporate them into its corporate manslaughter and gross negligence manslaughter sentencing guidelines; and its guideline for considering a reduction in sentence for a guilty plea.
The consultation closes on 23 May 2019.
The offence-specific sentencing guidelines in England and Wales use a two-stepped approach. At step one, sentencers must first consider harm and culpability factors which lead to starting points and ranges. Aggravating and mitigating factors are then considered at step two, before consideration of additional factors such as plea, totality and ancillary orders.
The Sentencing Council is only proposing to incorporate expanded explanations into the second step of the offence-specific guidelines, covering aggravating and mitigating factors. This is because the step one factors in the offence specific guidelines are tailored to the individual guideline, and the placement of a factor within a particular level of harm or culpability makes a difference to the effect it has.
The consultation covers both the concept of providing expanded explanations to sentencers, and the content of that information. The Sentencing Council is proposing to apply standard explanations across all the offence-specific guidelines, both for consistency and to ensure that the explanations are of wide-ranging application.
For corporate offenders, the most significant enhanced explanation for an aggravating factor is that for cost-cutting at the expense of safety. This will normally increase the seriousness, and will normally indicate a higher level of culpability, according to the enhanced explanation. The enhanced explanation lists examples including, but not limited to, attempting to avoid costs by 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.
The consultation also proposes an enhanced explanation for the mitigating factor of a high level of co-operation with the investigation beyond the expected, noting that this "may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence" separate from any reduction in sentence for a guilty plea at step four. Self-reporting, "particularly in circumstances where the offence may otherwise have gone undetected", may also justify a reduction in sentence at step two, separate from any step four reduction for a guilty plea.