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New Sentencing Guideline

Following a consultation in 2018, the Sentencing Council has published a new sentencing guideline to come into effect on 1 October 2019 that will apply to sentences decided on or after that date. This new “General guideline” will apply to the sentencing of organisations and adult individuals.

The General guideline provides overarching principles that will apply to sentencing offences for which there is no offence-specific sentencing guideline, and for use by Courts in conjunction with offence-specific sentencing guidelines. In other words, this General guideline can be applied in determining the sentence of any offence. Therefore, although most business crime offences are covered by specific sentencing guidelines (e.g. fraud, money laundering and bribery), these guidelines can be applied in conjunction with the General guideline.

Accordingly, the General guideline is most likely to apply to addition to, or in conjunction with, the existing offence-specific guidelines. For example, in the event that an organisation is found guilty of money laundering, the Sentencing Council’s guideline for money laundering will apply. However, if the Court finds that there are elements of the General guideline that would also apply to the facts of the case, then the Court can apply those too. One example of this is that the Court may increase the sentence by virtue of the offending organisation having made financial gain from the money laundering offence. This aggravating factor is not one of the non-exhaustive list of factors in the money laundering guideline, but it is present in the General guideline’s list of aggravating factors.

The General guideline updates and replaces the Sentencing Guidelines Council’s “Seriousness” guideline. The changes are in no way substantial or drastic, and instead they merely bring the guideline in line with the current approach to sentencing. The General guideline is a welcome addition to the information available to legal practitioners and the Courts, as it will bring additional clarity to the sentencing procedure.

The key changes from the Seriousness guideline include:

  • A more structured approach to sentencing;
  • Additional information in relation to the imposition of fines; and
  • Expanded explanations of the aggravating and mitigating factors.

Under the General guideline, judges and m

1. Structured approach

Under the General guideline, judges and magistrates are invited to follow a clear structure when sentencing offences with no specific guidelines. This structure will also assist the prosecution and the defence with structuring their submissions regarding sentencing.

Step 1 – Reaching a provisional sentence
Step 2 – Aggravating and mitigating factors
Step 3 – Consider any factors which indicate a reduction for assistance to the prosecution
Step 4 – Reduction for guilty pleas
Step 5 – Dangerousness
Step 6 – Special custodial sentence for certain offenders of particular concern
Step 7 – Totality principle
Step 8 – Compensation and ancillary orders
Step 9 – Reasons
Step 10 – Consideration for time spent on bail (tagged curfew)

Step 1 will assess the seriousness of the offence, as before, by determining the culpability of the offender and the harm caused by the offence. The new General guideline provides some additional information about the different elements of culpability and harm to consider.

2. Imposition of fines

In addition to the ranges of the fine bands that were already provided in the Seriousness guidelines, the General guideline provides guidance to ensure that fines remove any economic benefit from the commission of the offence. It also requires that the Courts obtain financial information about the offender.

Some of the key guidance in the new General guideline include:

“The court should determine the appropriate level of fine in accordance with this guideline and section 164 of the Criminal Justice Act 2003, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender.”

“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 comply with the law.”

“When sentencing organisations 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 the law. The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence.”

3. Expanded explanations

Although the aggravating and mitigating factors themselves have not changed, the new General guideline provides expanded explanations for these. Some key examples include:

“Commission of the offence for financial gain

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.”

“Good character and/or exemplary conduct

This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence.

However, this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.”

With this additional information, the prosecution and defence will have more clarity as to the meaning of these factors. Moreover, the expanded explanations will lead to more consistent and transparent application of factors in sentencing of offences by the Courts.

For further details about the new General guideline, please visit the link below:


Charles Thomson is a partner and solicitor advocate in Baker McKenzie’s Dispute Resolution Practice Group in London. He co-manages the Business Crime Unit, and is part of the Financial Institutions Disputes, Contentious Trusts and Compliance and Investigations Groups. Charles joined the Firm as a trainee in 2002, and concurrently spent three months on secondment as a judicial assistant at the Royal Courts of Justice in the Civil Appeals Division. A solicitor advocate since 2007, Charles appears as an advocate in all Higher Courts in England and Wales. Chambers and Legal 500 both commend Charles for his legal practice. Charles is also listed as a Rising Star in Litigation by Legal Week.


Joanna Ludlam is a partner in the Dispute Resolution team in Baker McKenzie's London office, where she leads the market-leading Regulatory, Public & Media law team and also co-leads the office's Compliance & Investigations Practice Group. At an international level, she co-chairs the Firm's Global Compliance & Investigations Steering Committee. In 2016, Joanna was named as one of The Lawyer’s “Hot 100” for her practice, and is recognised by Legal 500 and Chambers & Partners.


Jonathan chairs the firm's Financial Institutions Global Industry Group and is a partner in the London Dispute Resolution practice. Jonathan has deep experience in advising boards, executive teams and individuals dealing with issues of market integrity, ethics, brand and reputation impact, conduct risk, whistleblowing, market misconduct, systems and controls failings and remediation, public statements and investor relations, financial crime, fraud, regulatory investigation and enforcement, public policy, public law and civil and criminal litigation. Jonathan's substantial in-house experience delivers a highly strategic and commercial focus aimed at re-establishing confidence in the brand and individuals. Jonathan joined Baker McKenzie from Barclays Bank PLC. Spanning a decade of unique pressure in the financial sector amidst the global financial crisis, he led the global litigation, investigations and enforcement function and established the bank's financial crime legal team. Jonathan was responsible for a series of high-profile regulatory and criminal investigations in EMEA, the US and Asia Pacific regions and led a significant portfolio of wholesale and retail litigation. Supporting the bank's risk and compliance functions, he implemented and improved systems and controls in respect of money laundering, bribery and corruption, fraud and international sanctions. Jonathan worked with UK and US law enforcement and government intelligence agencies on counter-terrorism, organised crime and other domestic and international security initiatives. Jonathan is the contributing author to a number of leading legal and sector publications, including: Banks and Financial Crime: International Law of Tainted Money (Oxford University Press 2008, 2016); Global Investigations Review - The Evolution of Risk Management in Global Investigations (GIR 2016, 2017, 2018); and's annual Top 10 Operational Risks (2018-2022).


Tristan Grimmer is a partner in Baker McKenzie's London office and the UK Head of the International Trade Practice Group. He is also a member of the Compliance & Investigations and the International Trade and Competition practice groups. Tristan joined Baker McKenzie as a trainee in March 2004, qualifying in March 2006. He has advised on parallel investigations by authorities in the United States, Switzerland, Brazil and Japan, and has spent time working in Baker McKenzie's Chicago office. Tristan is named as a "Leading Individual" for EU And Competition: Trade, WTO Anti-Dumping and Customs in the UK Legal 500 2023 directory.



Henry Garfield is a senior associate in Baker McKenzie's Dispute Resolution department based in London. Henry's practice focuses on fraud, asset tracing, internal investigations and business crime. He also undertakes general commercial litigation. Henry has just completed an 11 month secondment to the Serious Fraud Office, during which he was the Case Lawyer on an investigation into a £60 million fraud. The investigation involved unravelling trust and company structures in several offshore jurisdictions and has recently resulted in two individuals being charged with fraud and forgery offences.