The sentencing hearing

• The procedure at court
• Citing previous sentences
• Role of the prosecution at the sentencing hearing
• Mitigation
• Newton hearings
• Power to commit to Crown Court for sentence

The procedure at court

1. A sentencing hearing will usually follow the procedure below:
   • The justice's clerk/clerk of the court will inform the court of the charge and the guilty plea or verdict.
   • The representative for the prosecution (you or a lawyer) will speak first. You will outline the facts of the case, including the statutory requirements, extent of the breach(es) and any injuries caused. You should highlight any aggravating or other relevant features, referring to Howe and the Friskies schedule. You may mention any mitigating features that you accept are present and, if necessary, rebut any others that you anticipate the defence may raise. You will draw the court’s attention to Howe and other legal precedents on sentence as appropriate (see ‘The role of the prosecution’ below). You should also apply for costs, providing the court at this stage (if you have not already done so) with a schedule of prosecution costs and the Friskies schedule.
   • The representative for the defence will then make a plea in mitigation for a low level of sentence (see ‘Mitigation’ below).
   • The prosecution has the opportunity to make any comments in return. Whilst it is often unnecessary to make any such comments, if the defence have strayed from the basis of plea as set out in the Friskies schedule, or have raised new and specific matters on which the prosecution can help the court, comments in reply may be appropriate (see below).
   • The court will pass sentence.
   • Costs will be dealt with.
2. For guidance on procedures to be followed in relation to specific penalties, see the section Penalties.
3. You should always follow the etiquette of the court. For example, you should not interrupt when the defence is speaking. For guidance on presenting a case before the magistrates’ court, see Court procedure.

Citing previous sentences

4. In order to encourage the court to impose a low fine, the defence may cite cases from the HSE prosecutions database in which a low fine has been imposed. The sentencing judge might find this attractive, but you should draw the court’s attention to the guidance from the Court of Appeal on this matter¹, reminding the court that:
   
   • the sentences on the database took into account a wide range of factors that were unique to the circumstances and context of the particular case, which may not be present in the case that is currently being considered;
   • there is no standard tariff for any health and safety case. The court is required to consider each case on an individual basis².

Role of the prosecution at the sentencing hearing

5. In addition to outlining the facts of the case and any aggravating features, it is also the duty of the prosecution to assist the court with regard to sentencing³. You should be prepared to remind the court, if necessary, of its sentencing powers, for example if it appears that the court will impose a sentence that exceeds the maximum available to it (see Penalties for guidance). You should also draw the court’s attention, where appropriate, to helpful case law on the principles of sentencing in health and safety cases (in particular, Howe) and any relevant sentencing guidelines, whilst being careful not to appear to be attempting to restrict the court’s discretion.
6. If the court seeks your view as to whether a particular sentence, which it has the power to impose, would be appropriate, you should remind the court that this would go beyond the proper role of the prosecution.

Mitigation

7. After the prosecution has addressed the court, the defence will put forward its mitigation. Mitigation seeks to explain the circumstances leading to the commission of the offence in the most favourable light.
8. The defence view of the facts may not be in accordance with those which you have put forward, and you may not have been able to agree the contents of the Friskies schedule. A defendant is entitled to dispute the factual basis upon which the case is put by the prosecution whilst still accepting that an offence has been committed (for example, by denying the extent of the injuries caused or how long a dangerous state of affairs had existed).
9. You should always listen carefully to the defence speech in mitigation and be prepared to correct any serious, relevant misstatements of the facts and issues in the case, particularly where the defence had agreed those facts in the Friskies schedule. Where the disputed facts could have a significant influence on sentence, the court may decide to hold a Newton hearing (see below).
10. Where a Friskies schedule sets out an agreed basis of plea, the court will usually sentence on that basis, although it is not bound to do so⁴. Further guidance on Friskies schedules can be found in the section Factors relevant to sentence.

Newton hearings

11. A Newton ⁵ hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of the facts from that of the prosecution ⁶.
12. If the prosecution and the defence are unable to agree the facts of the offence, the court may hold a Newton hearing to resolve the dispute and ascertain the correct basis for sentence. Evidence will be heard on the disputed facts. Such a hearing is not necessary if the disputed facts do not have the potential to significantly affect the level of sentence.
13. Where the magistrates’ court holds a Newton hearing and makes a decision upon it before committing the case to the Crown Court for sentence (see below), the Crown Court has the power, on committal of an either way offence, to hold a further Newton hearing if it is in the interests of fairness and justice to do so⁷.
14. You should refer to The hearing for further guidance on Newton hearings.

Power to commit to Crown Court for sentence

15. Where, in the magistrates’ court, an offender has been convicted of, or has pleaded guilty to, an either way offence, but the magistrates consider that the penalties available to them are inadequate having regard to the seriousness of the offence or combination of offences, they may commit the offender to the Crown Court for sentencing⁸. This power applies to both companies and individuals ⁹.

16. The magistrates may decide that the offence or offences are so serious as to require committal to the Crown Court for sentence, even though they made a decision at the mode of trial hearing that the case was suitable for trial in the magistrates’ court and no new information has been received¹⁰. Following a guilty plea, it is not the prosecution’s role to invite the court either to retain the case for sentencing or to commit it to the Crown Court. You may consider it appropriate to refer the court to the judgment in Howe¹¹, in which the Court of Appeal expressed the view that "magistrates should always think carefully before accepting jurisdiction in health and safety at work cases, where it is arguable that the fine may exceed the limit of their jursidiction or where death or serious injury has resulted from the offence".

17. In the case of an individual, the magistrates have the power to make an order requiring the defendant to provide a statement of his/her financial circumstances¹², which will assist the Crown Court in determining an appropriate sentence.

18. Further guidance on committals for sentence can be found in the Crown Court section.

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Footnotes

1. R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249.
2. In the case of R v Environmental Tyre Disposals Ltd [2005] EWCA Crim 2687, the defendant appealed against the sentence imposed at the Crown Court for a health and safety offence. In the Court of Appeal, defence counsel submitted, inter alia, that the fine was out of line with fines imposed in other cases. Latham LJ stated (at para 12) that it "is very difficult to extrapolate from case to case any scale which can assist courts" and upheld the fine. In R v Yorkshire Sheeting & Insulation Ltd [2003] EWCA Crim 458, the appellant attempted to draw a number of sentences in other health and safety cases to the attention of the court. The judgment made clear that "only limited guidance can be obtained from the citation of such authorities; as explained in Howe at page 254b, it is impossible to lay down a tariff in cases of this kind: each case must be decided by reference to its own circumstances". In R v Southampton University Hospital Trust [2006] EWCA Crim 2971, Gage LJ stated (at para 20): "As to the references of fines imposed in other cases at first instance, we glean little assistance from them. In cases of this type so much turns on the individual facts of each case. There is in cases such as this…no tariff".
3. R v Cain & Others [2006] EWCA Crim 3233. See also Sections B (‘General principles’) and C (‘The Basis of plea’) of The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise.
4. R v Underwood [2005] 1 Cr App R 13, CA.
5. From the case of R v Newton (1982).
6. In the case of R v Tolera [1999] 1 Cr App R 29, CA, it was made plain that if the defendant wishes to be sentenced on a basis that is different to that of the Crown case, s/he must explicitly say so.
7. Gillan v Director of Public Prosecutions [2007] EWHC 380 (Admin), DC.
8. Powers of Criminal Courts (Sentencing) Act 2000 (‘PCCSA 2000’), sections 3 to 5.
9. PCCSA 2000 s.3(1)(a) refers to a ‘person’ not an ‘individual’. Companies fall within this definition as they are a legal ‘person’.
10. R v North Sefton Magistrates’ Court, ex parte Marsh [1994] Crim LR 865. The Court agreed with the observation in R v Dover Magistrates’ Court, ex parte Pamment [1994] Crim LR 471 that the magistrates should continue to think carefully when deciding to accept jurisdiction, because normally an accused should be able to conclude that once jurisdiction had been accepted, s/he would not on the same facts be committed to the Crown Court for sentence.
11. R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 (at page 255).
12. Criminal Justice Act 2003, s.162.