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New sentencing rules to give an alternative approach for the courts

View profile for Paul Loughlin
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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:

  1. An endorsement on the offender’s driving licence together with the imposition of penalty points or disqualification depending on the offence; and
  2. 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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Comments4

    • Response to 'Legislation updates'Stephensons - Paul Loughlin
    • Posted

    You make some good points about social media and interactivity on phones nowadays. It seems the number of distractions open to drivers because of technology is on a completely different scale to when the ‘mobile phone offence’ was brought into force in 2007. Perhaps the sentencing council has reflected that to a degree over the last 10 years by changing the penalty from a simple £60 fixed penalty in 2007 right up to the initial  introduction of penalty points and then those points being doubled recently. The penalty being at 6 points and a £200 fine now means that if the offence is committed twice within a three year window you would be facing a 6 month spell off the road. In 2007 the offence could have been committed an unlimited number of times and incur only a financial penalty. There is no doubt that some of the more serious examples of using a mobile phone whilst driving can lead to disastrous consequences. For those cases there is scope for the prosecution to consider a more serious charge such as dangerous driving if the full circumstances involved suggest this is appropriate. Whether that is the more appropriate deterrent or whether the sentencing guidelines need to be revisited again in the future remains to be seen.

    • Response to Mike CopeStephensons - Paul Loughlin
    • Posted

    You are correct in that many offences now that lead to penalty points being incurred can result from an administrative oversight rather than a deliberate flouting of the law. Many motoring offences can be described as ‘strict liability’ offences meaning that there does not have to be a deliberate intention to commit an offence in order for a charge to be justified in law. Other criminal offences have to not only prove that the act took place but that there was an intention to carry out that act. Driving without insurance, for example, is one of those offences where an administrative oversight can lead to you being in a position where you are liable for the same penalty as someone who deliberately and with no regard for the law goes out and drives a car they know they are not legally insured to drive. Some people do describe this as a draconian and even unbalanced approach towards criminal liability. Overall, though, the sentencing guidelines are intended to provide a more balanced approach towards the proportionality of penalties. In general, the more serious the circumstances surrounding the offence then the more potential there is for a more serious penalty. Continuing with the example of driving without insurance, we can see that the penalty for this offence ranges from 6 penalty points right up to a 12 month ban (in very serious cases) so there is a wider penalty available -  but we do take your point about certain people being more at risk of committing an offence than others due to more practical issues that don’t relate to a blatant violation of the law. Unfortunately, that is the nature of this type of offence.

    • Thank you for the penalty update. My frustrations are 'paperless insurance companies' , 'and road tax' and illegal( imposter) drivers.Michael Cope
    • Posted

    I have three cars and three drivers to keep taxed, insured and mot'd. Each year I problems remembering the renewal dates and dread the " you should have checked your email" "we sent you an automated reminder". Young people have have no difficulty keeping up, us older ones are finding it an ongoing nightmare.The post is fairly reliable but mobile phone communications are becoming unreliable. Phones get lost, stolen, messed up by children and number changes. Tax authorities should send people over say 50 recorded delivery notice of renewals (and charge say £5) insurance companies should be obliged to send a reminder by post,email and then telephone to be certain that they've done all they can to keep us insured. All MOT stations should be obligated to remind all cars owners, they have mot''d last year, giving them the opportunity to go back to them or not. Good business practise can make all the difference to its senior customers. Driver without drivers licences, insurance or a stolen car should be incarcerated until all legal documents have been discovered, standard fines paid and innocent victims fully informed. Too many banned and bogus drivers break the law without conscience or care of fines or consequences to others. Cars are a weapon and kill when used as an escape vehicle. Such individuals should be tagged and trackable to protect good and innocent legal drivers like you and I. Somehow, fining drivers with good driving records, insults intelligence, justice is unfair when deliberate speeders ( 10 miles or more above the said speed limit ) are fined the same. As you get older your ability to concentrate on everything including looking down at your speedometer, through ( through bifocals for example example ) becomes more difficult. No excuse for speeding but you do have to take your eyes off the road momentarily to check your speed especially when it's so easy to be drawn along with other ( dare I say more alert drivers ) and drift up a few MPH. Hey ho.

     

    Thanks for this opportunity to be both informed and to express my frustrations. I will be using Stephenson's if I ever need to, I like your forward thinking.

     

    Mike Cope.

     

     

    • Legislation updatesTed Potter
    • Posted

    I always enjoy reading up on the latest news on this site.

    The topics about using cell phones unlawfully, and also drink driving updates, are serious offences that affect how the majority of the nation lead their daily lives as more people than ever have vehicles, and even more have cell phones without hands free.

    Unfortunately such activities as checking your mobile whilst driving have become almost second nature to the majority. The resulting tragedies of killing or main ing an innocent pedestrian or occupants of another vehicle are well publicised. I would hazard a guess that the most common use by young people in particular, is reading their Facebook page! The world is obsessed with social media and instant messaging etc, to the point of being addictive and downright dangerous and it must be read NOW!

    I believe that anyone caught using their phones unlawfully should receive an instant two year ban. This would clearly have a serious affect on their life whether working or not, but in the long term might actually save their and other road users lives, and make those drivers better people. 

    Thankfully, I think, drink driving offences may not be as prevalent as they once were, as drivers have become more educated - hence the closure of many licenced premises in recent years as drivers changed their drinking habits, and either drank soft drinks or just didn't stop off at the local pub. If shopping at the main supermarkets is anything to go by, there seems to be a massive culture of people drinking at home nowadays, certainly by the amount of alcohol I sometimes see purchased!

    Today, and typically every day whilst on the road, I see all sorts of drivers still blatantly using their cell phones whilst driving. After the initial new legislation roll out day by the Police in catching offenders at almost every junction, it now seems they have had to deploy the few officers they now have compared to recent years, on other matters.

    Thank you for sharing and look forward to further updates!