The first series of new-style ­guidelines has taken effect for all sentences imposed on or after 13 June 2011, whatever the date of the offence. The guidelines apply to offences under:

  • Section 18 of the Offences against the Person Act 1861 (OAPA);
  • Section 20 of the OAPA;
  • Section 47 of the OAPA;
  • Section 38 of the OAPA;
  • Section 89 of the Police Act 1996; and
  • Section 39 of the Criminal Justice Act 1988.

These guidelines are very different to those for all other offences. For assault offences there is no longer a lengthy introduction. All relevant material is contained within the guideline itself. The critical change is that the guidelines are no longer produced on the assumption that this is a first offence. The existence or absence of previous convictions now forms part of the process of applying the guidelines, and this should increase consistency between courts.

Each guideline contains a note on the ‘offence range’. A sentence outside this range must be justified by the interests of justice in the particular case (section 125(1) and (3) of the Coroners and Justice Act 2009).

Step 1 of the new guidelines is the identification of the category into which the particular offence falls. This requires an identification of whether there is greater or lesser harm and higher or lower culpability. Harm includes intended harm. Greater harm requires harm which is serious in the context of the offence charged. Each guideline contains an exclusive list of relevant factors to be taken into account.

Step 2 contains the table setting out the starting point and range of sentences for each category. Examples of aggravating and mitigating factors are set out but others may be raised by the Crown and the defence. It is at this point that previous convictions are, if relevant, considered. A court may move between categories if the aggravating or mitigating factors so require.

Step 3 takes account of any assistance given to the prosecution.

Step 4 applies the discount for a guilty plea. In accordance with the established guideline on discount for such pleas, this can move a case between categories as well as otherwise reduce the sentence. Step 5 applies the principles of dangerousness. Step 6 applies the totality principle. Step 7 considers compensation and other ancillary orders. Step 8 requires the court to give its reasons.

Step 9 requires reductions to be made from custodial sentences for time spent on remand or qualifying curfew. The guideline for common assault is now in the same form as other guidelines. Premeditation is now of lesser significance, being a relevant consideration in applying the sentencing range rather than determinative of the category. At the more serious level of assault, sentencing levels are increased, but at the lower level there is much less emphasis on custody – advocates in the magistrates’ court are having to bring this expressly to the attention of the court.

Bribery

On 1 July 2011 the Bribery Act 2010 was brought into force for acts or omissions on or after that date. The new offences are very widely drawn, but any prosecution requires the personal consent of the director of public prosecutions (DPP) or of the Serious Fraud Office (SFO) ­(section 10).

The offences can be committed directly or indirectly. There is no requirement for the Crown to show dishonesty or an intention to corrupt. In summary:

  • Section 1 creates the offence of bribing another person in two defined cases involving an offer, promise or giving of a financial or other advantage to another person, intending that the advantage induces a person to perform, or rewards a person for performing, improperly a ‘relevant function or activity’, or where the acceptance itself constitutes such an improper performance.
  • Section 2 creates the offence of being bribed in four defined cases. These include a request for, or receipt of, financial or other advantage so that a relevant function or activity is performed improperly. In relevant cases it does not matter whether the recipient knows or believes that the performance is improper.

It does not matter where in the world the activity may take place – the standards of the UK are applied unless there is written law to the contrary (section 5).

Relevant activities and functions are defined in section 3 as being a function of a public nature, any activity connected with a business, or performed in the course of a person’s employment if either: it is expected to be performed in good faith; or the person is expected to perform impartially; or the person is in a position of trust. Section 4 defines improper ­performance by reference to the expectation of the person of the ­status in question. Section 6 creates a specific offence of bribing foreign public officials.

The main interest has been caused by section 7. This creates a vicarious criminal liability on commercial organisations for the acts of their agents, employees and subsidiaries (associated persons) unless they can show that they had in place adequate procedures designed to prevent those persons breaching the statute. Guidance on such procedures has been published by the Ministry of Justice, as have the prosecution policies of the DPP and the director of the SFO.

The offences, wherever committed, apply to any body incorporated under UK law or which carry on a business in any part of the UK. Sections 1, 2, and 6 create either-way offences carrying 10 years on indictment; and the offence under section 7 is indictable only and subject to an unlimited fine.

Anthony Edwards, TV Edwards