Magistrates will be given ‘starting points’ to help them sentence disqualified company directors who breach court orders as part of Sentencing Council efforts to ensure a consistent approach in the courts.
The council is suggesting one-year’s custody as a starting point for disqualified company directors who flagrantly breach an order which results in significant risk or actual serious financial loss or harm to the company or others.
Depending on the wider context of the offence and any relevant circumstances, it would be at the court’s discretion whether to remain at the starting point or to move up or down from it.
The council proposes a range of 26 weeks to one year and six months.
A 12-week custodial starting point is proposed for a flagrant breach of an order which results in very low risk or little or no financial loss to the company or others.
The council highlights two levels of culpability for magistrates to consider – a flagrant breach and all other cases.
The consultation paper states: ‘In all but one of the cases reviewed by the council in developing the guideline the breaches were flagrant, with the offender deliberately setting up and/or managing companies or businesses knowing they were prohibited from doing so.
‘The other case related to a disqualified person failing to appreciate that the disqualification order was not restricted to commercial activity and extended to the management of a charity. This is the type of case that would fall into category B [all other cases].’
At present, those who breach a disqualification order contained within the Company Directors Disqualification Act 1986 are liable to be convicted for not more than two years or a fine, or both, and on summary conviction to six months in prison or a fine, or both.
A disqualification can be imposed by the court as an ancillary order on conviction or as a result of bankruptcy and insolvency proceedings. However, there has been no existing guidance for sentencing this breach.
Today’s proposals are set out in the council’s Breach Offences Guideline consultation document.
Magistrates currently do not have guidelines for all court order breaches. Where there is guidance, the council says its format and scope vary.
A survey conducted of 216 magistrates and district judges last year showed that respondents wanted comprehensive sentencing guidelines for breaches of orders, presented in a consistent format and clearly identifiable.
The council hopes issuing a single definitive guideline will ensure a consistent sentencing approach.
For the first time, the guidance includes a focus on risk of harm for some breaches to ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred.
The council gives an example of a sex offender who fails to comply with notification requirements with the intention of evading detection to commit further offences.
Other breaches covered in the document include breaches of a community order, suspended sentence order, post-sentence supervision and protective order, as well as breach of disqualification from keeping an animal.
Sentencing Council member Martin Graham (pictured) said offenders can expect ‘robust penalties’ to be imposed where whey breach orders and cause or risk harm or distress to others.
The consultation closes on 25 January.