It might have been picked up on most people’s radars in the last few weeks that the Sentencing Council has revised the sentencing guidelines for speeding meaning motorists convicted of serious speeding offences are set to face harsher penalties. Further consideration of the revised guidelines, however, shows that it isn’t just speeding sentences that face change.
Mega rich pay mega fines - is that deterrent enough?
On 24 April 2017, aside from changes to guidance given to courts for the specified range of penalties that can be imposed, we will see the formal implementation into the sentencing guidelines of an unlimited fine for many offences. Whilst it has not been formally written into the specific offence sentencing guidelines yet, it has been the case since 12 March 2015 that, rather than imposing a maximum fine for offences such as drink driving (previously £5,000) the magistrates’ court has the power to impose a fine that is entirely based on the offender’s income. There is no set limit in place. This has already been well publicised with a number of high profile cases in recent times seeing those in more fortunate financial positions having to fork out tens of thousands to reflect their means.
Drop in the ocean
Two Premiership footballers immediately spring to mind in Yaya Toure and the very recently sentenced Roberto Firmino. Toure entered a guilty plea in December last year and to reflect a reported alcohol reading of 75 micrograms per 100 millilitres of breath was given an 18 month ban. He was fined according to his income meaning it amounted to a reported £54,000 fine! Firmino was asked to pay a more modest £20,000 and was given a 12 month ban to reflect a breath alcohol reading of 46 micrograms per 100 millilitres of breath. The ban was higher for Toure to reflect the higher reading. The fines, however, were assessed by using identical criteria. The main changes to the sentencing guidelines for this type of offence will see a different approach from courts.
Fines of that amount, whilst clearly bank busting for most of us, have less of an impact on the mega rich footballers who have millions already in the bank. It has to be put into context when deciding on whether the penalty imposed is more punitive than another. Perhaps the difference between £20,000 and £54,000 is negligible to the mega rich?
A more effective deterrent?
Penalties for drink driving convictions, in particular, are often debated. There have often been calls for lowering the drink driving limit with many believing that there should even be a zero tolerance. The government does not appear to have any imminent plans for this and even as recently as this time last year, Transport Minister, Andrew Jones made the position clear by stating that "the government believes rigorous enforcement and serious penalties for drink-drivers are a more effective deterrent than changing the drink-driving limit.”
The general rule of thumb when it comes to sentencing for motoring offences of this type is that there are two separate parts of the penalty for the magistrates’ to consider:
- An endorsement on the offender’s driving licence together with the imposition of penalty points or disqualification depending on the offence; and
- A separate part of the penalty such as a fine, a community order or in serious cases of the more serious offences even a prison sentence.
As has been made clear, new sentencing guidelines for drink driving offences will not refer to lower limits, nor will they even refer to longer bans. They will, however, see a reshuffle in that second part of the sentencing considerations. If Firmino and Toure were to be considered for sentence after 24 April 2017 then the penalties would potentially be different for both. There may even be a significant difference for Yaya Toure. The guidelines will allow the court to consider different approach to this ‘punitive element’ of the penalty. For the first time, the second of four sentencing brackets used for consideration of penalty by the magistrates’ court will direct the magistrates to give automatic consideration to a community order in the alternative to a fine. Toure, by virtue of his higher reading, fell into that bracket. Had he been sentenced in accordance with the new guidelines we may have seen Toure being followed by a camera on Sky Sports News having to comply with his unpaid work requirement. Would Toure have wanted this publicised in the same way that other celebrities like Boy George or late George Michael had to deal with? Would that have been a more effective deterrent?
Toure accepted responsibility but suggested he was unaware that he had been drinking alcohol and, although not enough to amount to a defence for this offence, may still have convinced the court to stick by the starting point in the guidelines of a fine. The new guidelines still allow for that.
Firmino, on the other hand, could potentially have been treated more leniently had he been dealt with in line with the new guidelines to be introduced in April 2017. The current guidelines mean that the lowest fine to be imposed for this offence is assessed based on a starting point of 150% of your relevant weekly income. The new guidelines allow for a fine to be assessed at a lower level of 100% of your relevant weekly income. The difference to Firmino would be negligible. To someone else it may be substantial.
In the interest of proportionality
The guidelines for drink driving are not the only guidelines that will be subject to change. Other motoring offences such as failing to provide a specimen for analysis, driving whilst unfit through drink or drugs, being in charge of a vehicle whilst unfit through drink or drugs, drunk in charge, failing to stop/report after a road accident, driving without insurance, careless driving, driving without insurance, speeding and driving whilst disqualified have all been subject to revision with more varied and in some cases harder penalties open to the magistrates consideration.
The changes to each offence deserve separate consideration in their own right and of course it remains to be seen how the changes will play out in practice but the message, certainly for the guidelines for drink driving and failing to provide a specimen (set to be subject to similar changes), seems to be that the courts will be allowed to consider wider ranging sentences based on the nature and severity of the offence whilst also considering factors relating to the offender. The headlines will relate to the more punitive penalty that can be imposed in certain cases but the reality could mean that, with proper direction, a more proportionate penalty can be put in place.
It is never wise to throw yourself at the mercy of the court and legal representation should always be considered. The new guidelines give rise to more interpretation on the part of the court and, more than ever before, from 24 April 2017 specialist help and advice is advised for those subject to the scrutiny of the courts.
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