Sentencing Policy and Economic Crime

DOIhttps://doi.org/10.1108/eb025857
Pages15-25
Publication Date01 Mar 1998
AuthorRalph Henham
SubjectAccounting & finance
Journal of Financial Crime Vol. 6 No. 1 Analysis
Sentencing Policy and Economic Crime
Ralph Henham
The aim of this article is to examine those philo-
sophical and structural factors which have been
responsible for shaping sentencing policy for eco-
nomic crime1 in the UK and to analyse some key
decisions of the Court of Appeal (Criminal Divi-
sion) in this area.
LENIENCY, PENAL PHILOSOPHY AND
REALITY
Croall's2 recent re-examination of the proposition
that white-collar offenders receive derisory senten-
ces largely confirmed Levi's 1989 findings3 which
had revealed, not surprisingly, that the rate of
imprisonment for male fraudsters was extremely
low in the case of regulatory offenders. However,
Levi had noted a rise of 62 per cent in the
numbers of males over 21 given sentences of
immediate imprisonment and partly suspended
prison stentences (now abolished) for fraud and
forgery at Crown courts between 1979 and 1987,
with the proportion of males convicted at Crown
courts who were imprisoned remaining fairly
stable at between 48 per cent in 1979 and 47 per
cent in 1987. Significantly, Levi opined that the
rise in the numbers imprisoned appeared attribut-
able to increased convictions and the introduction
of the partly suspended sentence in 1982, rather
than simply increased judicial punitiveness. Levi
was also able to show that average sentence lengths
for fraud and forgery over the period 1979-87
dropped from 17.1 to 14.5 months in the Crown
court and 3.7 to 2.9 months in magistrates' courts.
More recent statistics for the period 1990-954
show that, in common with all offences in both
magistrates' and Crown courts, there has been an
increase in the proportionate use of custody for
fraud and forgery for males aged 21 and over. In
the case of magistrates' courts, average sentence
lengths increased from 2.7 months in 1990 to 2.9
months in 1995, while falling in the Crown court
from an average of 15.6 months in 1990 to 14.2
months in 1995. It is significant that fraud and
forgery is the only offence group where average
sentence lengths fell in the Crown court between
1990 and 1995. However, in common with other
offence groups (excluding drug offences and the
miscellaneous group which includes motoring
offences) the number of offenders sentenced for
fraud and forgery offences in the Crown court
between 1990 and 1995 actually fell from 5.9 thou-
sand in 1990 to 4.1 thousand in 1995.5 Therefore,
in summary, it would appear that as regards those
offences falling within the categorisation 'fraud and
forgery' in the official statistics (which includes
frauds by company directors, false accounting and
bankruptcy offences), fewer offenders were sen-
tenced in 1995 than in 1990 and, when sentencing,
Crown court judges made greater proportionate
use of custody in 1995 than in 1990 but the aver-
age length of their sentences was shorter.6
Although it clearly is impossible to provide a
definitive explanation of the complex processes
producing these subtle variations in sentencing
behaviour,7 the impact of recent changes in crimi-
nal justice policy has undoubtedly been consider-
able.
As Rutherford explains, the proportionate
increase in custodial sentencing bears a strong rela-
tionship with policy and certain external events.8
In general terms, the policy of 'punitive bifurca-
tion' exemplified in the just deserts framework of
the Criminal Justice Act 19919 has been replaced
by a climate of 'populist punitiveness'10 that has
produced a quick succession of measures such as
the Criminal Justice Act 1993, Criminal Justice
and Public Order Act 1994 and the Crime (Sen-
tences) Act 199711 displaying apparent indifference
to the consequences of increased custodial sen-
tencing for the prison population. As regards sen-
tencing policy for economic crimes, it may be
argued that this merely reflects the proportionately
greater use of custodial sentences across the full
range of offences, whilst the reduction in average
sentence lengths recorded in fraud and forgery
cases may be the result of changes in the character-
istics of offenders or the seriousness of cases
brought to trial.12 The difficulty of identifying and
isolating the intervening variables in the sentencing
of fraud cases was commented upon by Levi, who
concluded that the main dimensions of sentence
variation in fraud cases were good/bad character,
guilty plea/contested case, length of time over
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