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Preparing for sentencing hearings

Sentencing and costs

Basis on which a court will sentence

  1. Normally, a court will sentence a convicted defendant on the basis of the facts that are put forward by the prosecution. If a case is committed for sentence in the Crown Court from the magistrates' court, the defendant will be sentenced on the same basis that the prosecution case was put in the magistrates' court. On committal for sentence in the Crown Court, you may not attempt to place a different basis of case. You should therefore ensure that you are familiar with the basis of the prosecution case and not depart from it.
  2. If a defendant pleads guilty to the offence but disputes some of the facts that the prosecution allege, the court may require a "Newton hearing" to enable it to decide which version it accepts (see The hearing).

Means of the defendant

  1. The means of a defendant are relevant when a court is determining a fine because it will assist in the imposition of a realistic penalty. You should make sure that you have the accounts of the defendant before the hearing. If the defendant does not provide any accounts, then the court is entitled to assume that they have sufficient resources to pay any fine the courts wish to impose. The Friskies schedule word icon refers to the need for defendants to provide financial information for this purpose. For further guidance, see the case summaries below and the section Imposing the sentence.
  2. Where the defendant is an individual, the court is under a duty to inquire into his/her financial circumstances before fixing the amount of the fine1. Individuals prosecuted by HSE may not understand from the Friskies schedule what personal financial information they should provide to the court. You should therefore request a means form from the court when laying informations and send it to the defendant with the summons.
  3. The court has the power to order an individual to give a statement of his/her financial circumstances to the court before sentencing2. In certain circumstances, it may be appropriate to ask the court to make such an order, for example, where an individual has pleaded guilty but intends to claim that s/he is unable to pay a fine or costs.

Sentencing bundles

  1. You should ensure that the court has all the paperwork it needs to properly perform its duties when sentencing. At the magistrates’ court, you will wish to have the Magistrates’ Court Sentencing Guidelines3 available. You should consider which evidence (such as witness statements, photographs and other exhibits) you wish to refer to the sentencing court. If you do not wish to rely on the committal or trial bundles for this purpose, you should prepare and serve (on the court and the defence) paginated sentencing bundles containing the relevant information.
  2. If you intend to rely on advance information bundles, it is strongly suggested that you prepare a paginated copy for the court.
  3. You may also need additional paperwork if you are seeking a specific penalty (evidence of injury, previous convictions and enforcement actions). These are dealt with in the ‘penalties’ section below.

Case law bundles

  1. It is a part of the duty of the prosecution to draw a sentencing judge’s attention to any relevant cases that assist and give guidance to the judge in imposing an appropriate sentence4 (see The sentencing hearing). It will be helpful to take a bundle of authorities, consisting of precedents from case law, with you to court to illustrate, if necessary, the principles on which courts sentence for health and safety offences. You should provide the court and defence with a copy of any authorities you intend to rely on.

  2. The following authorities are useful, although the list is not exhaustive:
    • R v Associated Octel Co. Ltd (Costs) [1997] 1 Cr App R (S) 435, CA. HSE is entitled to recover the costs of the investigation leading to the conviction, not merely the legal costs.
    • R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249. The Court of Appeal expressed the view that the level of fines imposed generally for health and safety cases was too low. The Court stated that it was impossible to lay down a tariff for sentencing and that each case must be dealt with according to its own particular circumstances. The Court set out non-exhaustive lists of aggravating, mitigating and other relevant factors that a court might consider in deciding upon sentence. The case also contains a number of other principles: that defendants should supply accounts and other financial information or the court will be entitled to assume they can pay any fine the court chooses to levy; that the standard of care imposed by health and safety legislation is the same regardless of the size of the company; that when the defendant is a company, the fine needs to be large enough that shareholders as well as managers will take notice; that a fine should not, in general, be so large as to imperil the defendant’s continued trading, but there may be exceptional cases where a defendant ought not to be in business; and that there is no reason in principle why a defendant who is capable of paying the whole of the prosecution’s costs should not do so, or why such an award should be scaled down so as not to exceed the fine. See also Factors relevant to sentencing and Imposing the sentence.
    • R v Friskies Petcare (UK) Ltd [2000] 2 Cr App R (S) 401. This case covers the Friskies schedule; see Friskies schedules and Factors relevant to sentencing.
    • R v Rollco Screw & River Co and Others [1999] 2 Cr App R (S) 436, CA. In considering a period in which a corporate defendant can pay off a fine, a longer period than one that would be imposed on an individual defendant might be acceptable (see also R v Aceblade Ltd t/a Rand & Asquith Ltd [2001] 1 Cr App R (S) 105). The Court also stated that, in cases where the defendant was a small company, where directors and shareholders are likely to be the same people, the court should be wary of inflicting double punishment by fining both; nevertheless, there is a personal responsibility on directors which they cannot 'simply shuffle off' onto the company.
    • R v B&Q plc [2005] EWCA Crim 2297. Where a fine is imposed on a large company, the seriousness of the offending and the impact of the penalty can be brought home by requiring the fine to be paid "either immediately or in a period of days measured in single figures, unless very cogent evidence is provided to the court that more time is needed" (Thomas LJ). In the case of small companies and partnerships where a longer period is required (see the Rollco case above), the first instalment should be made payable at a very early date to bring home 'the effects of the criminality'.
    • R v Colthrop Board Mill Ltd [2002] EWCA Crim 520. The Court of Appeal stated that £500,000 is not an upper limit for a health and safety fine, nor should a fine of this size be confined to cases with an element of major public disaster.
    • R v Keltbray Ltd [2001] Cr App R (S) 39. The judge followed the principle of fining at a higher level.
    • R v Yorkshire Sheeting & Insulation Limited [2003] EWCA Crim 458, R v Environmental Tyre Disposals Ltd [2005] EWCA Crim 2687, R v Jarvis Facilities Ltd (citation below) and R v Southampton University Hospital Trust [2006] EWCA Crim 2971. There is no standard tariff for sentencing in health and safety cases; the court is required to consider each case on an individual basis. See also the Howe judgment (above) and The sentencing hearing.
    • R v Milford Haven Port Authority [2000] 2 Cr App R (S) 423, CA, endorsed in R v Balfour Beatty Rail Infrastructure Ltd (below) and R v Southampton University Hospital Trust [2006] EWCA Crim 2971: where a defendant is a public body, the court will take this into account as one factor in determining the size of fine. See also ‘Assessing the correct fine’ in Imposing the sentence.
    • R v Jarvis Facilities Ltd [2005] EWCA Crim 1409. The court is entitled to take a more serious view of breaches of health and safety law where there is a ‘significant public element’ to the work activity, "particularly where public safety is entrusted to companies … and where the general public simply has to trust in the competence and efficiency of such companies" (at para 11).
    • R v Balfour Beatty Rail Infrastructure Ltd [2006] EWCA Crim 1586, CA. A fine of sufficient size to have an impact on shareholders will provide a powerful incentive for management to comply with duties under health and safety law, and will satisfy the requirement for the sentence both to act as a deterrent and to punish the company for culpable failure to pay due regard to safety. Fines for a breach of duty that consists of a systemic failure attributable to the fault of management will be much larger than those for a breach resulting from the negligence or inadvertence of an individual. The Court also endorsed thirteen sentencing principles summarised by the trial judge, derived from the judgment in Howe and subsequent cases.
    • R v Warley Magistrates Court ex parte DPP [1998] 2 Cr App R 307. Magistrates must take into account the discount to be granted on a plea of guilty when considering whether their sentencing powers were adequate. If, after making an appropriate discount for a guilty plea, magistrates concluded that they had the power to impose an appropriate sentence they should do so. However, where, even with allowance for a guilty plea and mitigation, the nature of the offence required a sentence greater than they could impose, they should be ready to commit the accused to the Crown Court, but s/he should first be allowed to make representations. In addition, the court could consider all relevant aspects of the accused's character and antecedents before making the decision as to whether or not to commit and, where such a decision required the resolution of a dispute as to the facts, the magistrates should conduct a Newton hearing.

Footnotes

  1. Criminal Justice Act 2003, s.164(1).
  2. CJA 2003, s.162.
  3. See Magistrates' Court Sentencing Guidelines pages 181-183.
  4. R v Cain & Others [2006] EWCA Crim 3233; Attorney-General's Reference (No.52 of 2003) sub nom R v Ian David Webb [2003] EWCA Crim 3731.