Overarching Sentencing Guideline

3. Financial Penalties

Fine Bands

Sentencers should identify the appropriate band of fine by applying the offence specific guideline. Sentencers should then make a suitable adjustment within the applicable range to take into account aggravating and mitigating factors.

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General Principles

Sentencers should determine the appropriate level of fine in accordance with the applicable guidelines. The fine must reflect the seriousness of the offence and sentencers must take into account the financial circumstances of the offender.

Where possible, if a financial penalty is imposed, it 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

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.

In considering economic benefit, sentencers should avoid double recovery if also making confiscation, compensation and other ancillary orders.

Where the means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty.

Where it is not possible to calculate or estimate the economic benefit, sentencers may wish to draw on information from the enforcing authorities about the general costs of operating within 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. Sentencers 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.

Obtaining Financial Information

It is for the offender to disclose such data relevant to his or her financial position as will enable the sentencer to assess what the offender can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender’s financial circumstances.

In the absence of such disclosure, or if a sentencer is not satisfied that they have been given sufficient reliable information, the sentencer 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.

In setting a fine, sentencers may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.

Determining Relevant Weekly Income

The seriousness of an offence determines the choice of fine band in accordance with the offence specific guideline and the position of the offence within the range for that band. The offender’s financial circumstances are taken into account by expressing that position as a proportion of the offender’s relevant weekly income.

  • Where an offender is in receipt of income that is more than £120 per week after deduction of tax (or equivalent where the offender is self-employed), the actual income is the relevant weekly income.
  • Where the offender is in receipt of income that is £120 per week or less, the relevant weekly income is deemed to be £120.

No Reliable Information

Where an offender has failed to provide information, or the sentencer is not satisfied that sufficient reliable information has been provided by the offender, the sentencer is entitled to make such determination as they think fit regarding the financial circumstances of the offender[1].

Any determination should be clearly stated on the court records for use in any subsequent variation or enforcement proceedings. In such cases, a record should also be made of the applicable fine band and the sentencer’s assessment of the position of the offence within that band based on the seriousness of the offence.

Where there is no information on which a determination can be made, the sentencer should proceed on the basis of an assumed relevant weekly income of £440.

Where there is some information that tends to suggest a significantly lower or higher income than the recommended £440 default sum, the sentencer should make a determination based on that information.

A court is empowered to remit a fine in whole or part if the offender subsequently provides information as to means[2].  The assessment of offence seriousness and, therefore, the appropriate fine band and the position of the offence within that band are not affected by the provision of this information.

While the initial consideration for the assessment of a fine is the offender’s relevant weekly income, sentencers are required to take account of the offender’s financial circumstances including assets more broadly.

An offender’s financial circumstances may have the effect of increasing or reducing the amount of the fine; however, they are not relevant to the assessment of offence seriousness. They should be considered separately from the selection of the appropriate fine band and the sentencer’s assessment of the position of the offence within the range for that band.

Out of the Ordinary Expenses

In deciding the proportions of relevant weekly income that are the starting points and ranges for each fine band, account has been taken of reasonable living expenses. Accordingly, no further allowance should normally be made for these. In addition, no allowance should normally be made where the offender has dependants.

Outgoings will be relevant to the amount of the fine only where the expenditure is out of the ordinary and substantially reduces the ability to pay a financial penalty so that the requirement to pay a fine based on the standard approach would lead to undue hardship.

Unusually Low Outgoings

Where the offender’s living expenses are substantially lower than would normally be expected, it may be appropriate to adjust the amount of the fine to reflect this. This may apply, for example, where an offender does not make any financial contribution towards his or her living costs.

Savings

Where an offender has savings, these will not normally be relevant to the assessment of the amount of a fine although they may influence the decision on time to pay.

However, where an offender has little or no income but has substantial savings, sentencers may consider it appropriate to adjust the amount of the fine to reflect this.

Household Has More Than One Source Of Income

Where the household of which the offender is a part has more than one source of income, the fine should normally be based on the income of the offender alone. A second source of income in the household may influence the decision on time to pay.

However, where the offender’s part of the income is very small (or the offender is wholly dependent on the income of another), sentencers may have regard to the extent of the household’s income and assets which will be available to meet any fine imposed on the offender.

Potential Earning Capacity

Where there is reason to believe that an offender’s potential earning capacity is greater than his or her current income, sentencers may wish to adjust the amount of the fine to reflect this. This may apply, for example, where an unemployed offender states an expectation to gain paid employment within a short time. The basis for the calculation of the fine should be recorded to ensure that there is a clear record for use in variation or enforcement proceedings.

High Income Offenders

Where the offender is in receipt of very high income, a fine based on a proportion of relevant weekly income may be disproportionately high when compared with the seriousness of the offence. In such cases, sentencers should adjust the fine to an appropriate level; as a general indication, in most cases the fine for a first time offender pleading not guilty should not exceed 75 per cent of the maximum fine.

Low Income Offenders

Similar issues can arise where an offender is in receipt of a low income. A fine based on a proportion of relevant weekly income may become disproportionately high in the context of an offender in receipt of low income.  In such cases, sentencers should adjust the fine to an appropriate level.

Significant Commercial Benefit

Some offences are committed with the intention of gaining a significant commercial benefit. These often occur where, in order to carry out an activity lawfully, a person has to comply with certain processes which may be expensive, such as obtaining a permit.

In some of these cases, a fine based on the standard approach set out above may not reflect the level of financial gain achieved or sought through the offending. Accordingly, where the offender has generated income or avoided expenditure to a level that can be calculated or estimated, the court may wish to consider that amount when determining the financial penalty.

Where it is not possible to calculate or estimate that amount, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law.

Fines and Custodial Sentences

A fine and a custodial sentence may be imposed for the same offence although there will be few circumstances in which this is appropriate, particularly where the custodial sentence is to be served immediately.

One example might be where an offender has profited financially from an offence but there is no obvious victim to whom compensation can be awarded. Combining these sentences is most likely to be appropriate only where the custodial sentence is short and/or the offender clearly has, or will have, the means to pay.

Another example might be where a suspended sentence is imposed without requirements and a financial penalty serves as the punitive element to the sentence.

Care must be taken to ensure that the overall sentence is proportionate to the seriousness of the offence and that better off offenders are not able to ‘buy themselves out of custody’.

Payment of Fines

A fine is payable in full on the day on which it is imposed. The offender should always be asked for immediate payment when present in court and some payment on the day should be required wherever possible.

Where that is not possible the court may allow payments to be made over a period of time set by the court[1].

If periodic payments are allowed, the fine should normally be payable within a maximum of 12 months.

Where fine bands D, E and F apply, it may be appropriate for the fine to be of an amount that is larger than can be repaid within 12 months. In such cases, the fine should normally be payable within a maximum of 18 months (band D) or two years (bands E and F).

When allowing payment by instalments, payments should be set at a realistic rate taking into account the offender’s disposable income.

If the offender has dependants or larger than usual commitments, the weekly payment is likely to be decreased.

 

[1] Section 595 Criminal Procedure and Evidence Ordinance 2014

[1] Section 592 Criminal Procedure and Evidence Ordinance 2014

[2] Section 594 Criminal Procedure and Evidence Ordinance 2014.

 

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3. Financial Penalties
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