The sentencing hearing

• The procedure at court
• Citing previous sentences
• Role of the prosecution at the sentencing hearing
• Basis of Plea
• Newton hearings
• Mitigation
• 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 matter ¹, 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 basis ².

The maximum penalties available to the courts were increased by the Health & Safety (Offences) Act 2008, which applies to offences committed on or after 16 January 2009. As a result, the level of fines imposed in respect of offences committed before this date, particularly by the magistrates’ court, can have even less relevance when considering penalties for later offences.

Role of the prosecution at the sentencing hearing

5. In addition to outlining the facts of the case, the relevant statutory provisions relating to the offence and any aggravating features, it is also the duty of the prosecution to assist the court with regard to sentencing ³. You should be prepared to remind the court, if necessary, of its sentencing powers. This would be particularly important, for example if it appeared that the court was minded to impose a sentence that exceeded 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 ⁴, whilst being careful not to appear to be attempting to restrict the court’s discretion. See Preparing for sentencing hearings for further guidance;
• any victim personal statement or other information available to you as to the impact of the offence on the victim

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.

Basis of Plea

7. The defence may prepare a basis of plea document and/or a revised Friskies Schedule for your consideration, which sets out the basis for the guilty plea. The defence view of the facts or the aggravating or mitigating features may not be in accordance with the prosecution case as you see it.

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 admitting the breach but denying that the breach caused the accident/injuries or disputing how long a dangerous state of affairs had existed) ⁵.

8. The basis of plea and revised Friskies Schedule are important documents as they are the basis upon which the defence is asking the Court to sentence the defendant. Consequently if the defence presents a basis of plea to the Court which you have not seen in advance of the plea hearing you should inform the Court of this and ask for time to consider the document.

9. You should carefully consider the basis of plea taking account of the position of any other relevant defendant where appropriate and you should inform the defence in advance of the hearing if you disagree with its content and why.

The prosecutor is under no obligation to accept a basis of plea offered by the defence and the prosecution should not lend itself to any agreement whereby a case is presented to the sentencing court on a misleading or untrue set of facts. Prosecutors should not accept a basis of plea that is different from the case originally advanced by the prosecution without considering the impact on the likely sentence ⁶.

10. Where you do disagree with the basis of plea and the defence are not prepared to amend it the Court will need to consider the differences between the prosecution case and the defence basis of plea and reach a decision as to whether the differences would be material to sentence i.e. would a materially different sentence be imposed if the Court sentenced on the prosecution basis as opposed to the defence basis.

Although it is the duty of the defence advocate to inform the Court before the sentencing process begins about any significant disputed sections of the basis of plea there remains an overriding duty on the prosecution advocate to ensure that the sentencing judge is made aware of any discrepancy and of the consideration which must be given to holding a Newton hearing to resolve the issue.

In order to make a decision about whether to hold a Newton hearing the Court will need to know which sections of the basis of plea the prosecution disputes. The Court may also ask you whether you believe the disputed sections would make a material difference to the sentence imposed. If the Court concludes that the disputed sections would make a material difference to sentence the Court may decide to hold a trial of issue which is also known as a Newton hearing ⁷.

11. Where an agreed basis of plea exists, the court will usually sentence on that basis, although it is not bound to do so ⁸. Further guidance on Friskies schedules can be found in the section Factors relevant to sentence.

Newton hearings

12. A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution and the Court has concluded that the factual differences would make a material difference to the sentence imposed (see Basis of Plea above).   
The purpose of a Newton hearing is for the Court to resolve the dispute and ascertain the correct basis for sentence. Evidence will be heard on the disputed facts and witnesses may be called by the prosecution and the defence.

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 so ⁹.

You should refer to The hearing for further guidance on Newton hearings.

Mitigation

14. 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.

15. 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 have agreed those facts in the Friskies schedule or not produced a basis of plea. Where the disputed facts could have a significant influence on sentence and the defence have not prepared a basis of plea, you should draw the Court’s attention to the disputed facts and invite the Court to require the defence to clarify the basis of the plea. The Court can then consider whether to hold a Newton hearing (see above).

Power to commit to Crown Court for sentence

16. 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 sentencing ¹⁰. This power applies to both companies and individuals ¹¹.

17. 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 received ¹². 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 Howe ¹³, 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 jurisdiction or where death or serious injury has resulted from the offence”. A similar view is also mentioned in the Magistrates' Court Sentencing Guidelines ¹⁴

18. 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 circumstances ¹⁵, which will assist the Crown Court in determining an appropriate sentence.

19. 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. See Magistrates’ Court Sentencing Guidelines pages 181-183b as amended with effect from 28/10/09.
5. See The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise
6. R v Underwood (2005) 1 Cr App R 13, CA
7. From the case of R v Newton (1982).
8. 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.
9. Gillan v Director of Public Prosecutions [2007] EWHC 380 (Admin), DC.
10. Powers of Criminal Courts (Sentencing) Act 2000 (‘PCCSA 2000’), sections 3 to 5.
11. PCCSA 2000 s.3(1)(a) refers to a ‘person’ not an ‘individual’. Companies fall within this definition as they are a legal ‘person’.
12. 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.
13. R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 (at page 255).
14. See Magistrates’ Court Sentencing Guidelines pages 181-183b
15. Criminal Justice Act 2003, s.162.