1. On18th June 2012 the Criminal Justice Act 2003 (Commencement No. 28 and Saving Provisions) Order 2012 introduced phased abolition of committal proceedings and mode of trial process in cases where a defendant has pleaded not guilty or declined to indicate a plea. As from 28th May 2013 committal proceedings (except a committal sentence) have been abolished throughout England and Wales and defendants charged with an either way offence will now be subject to a new type of procedure known as the ‘allocation procedure’.
2. Where a defendant has been charged with an offence which is triable either way, the magistrates' court should proceed with plea before venue and allocation. This will decide whether the case will be heard in the magistrates' court or Crown Court. 1 You may represent the prosecution at this hearing and will have an important role to play in making representations to the court.
3. The Magistrates' Courts Act 1980 2, deals with the "plea before venue" procedure.
4. A defendant charged with an either way offence can plead guilty and be sentenced in the magistrates' court, unless there is a committal to the Crown Court for sentence. Allocations apply to those cases where the defendant either pleads not guilty, or refuses to state a plea.
5. Because the defendant must be asked at plea before venue where s/he wishes the case to be tried, the court cannot proceed in the absence of an individual defendant. Therefore the defendant must normally be present when a plea is entered, 3 unless:
6. Where the defendant is a company, the court may proceed to determine plea before venue in its absence,6 but is not obliged to do so.
7. The defendant is identified at the hearing and the charge is read out.
8. The justices' legal adviser will explain the plea before venue procedure to the defendant (if an individual) , i.e.:-
9. The court will then ask the defendant whether s/he would plead guilty or not guilty. If the defendant is a corporation, a representative of the corporation may indicate the plea7. That representative must have a written statement, signed by the managing director or other person having the management of its affairs, appointing the representative to act for the corporation8
10. The procedure outlined above will take place without hearing any representations from the prosecutor regarding the seriousness of the offence and whether or not, the prosecution consider that, the magistrates' powers of punishment are sufficient.
11. If the defendant indicates a guilty plea, then the prosecutor will open the case fully and the court will proceed as if the defendant had been convicted of the offence and consider sentence. It is at that stage that the prosecutor should emphasise any aggravating features or particularly serious aspects of the case which may mean that the Magistrates powers of sentence are insufficient. This may be by reference to sentencing guideline cases such as R v F Howe & Son (Engineers) Ltd 9 as well as the Magistrates Courts Sentencing Guidelines (pages 181 - 183) 10 and, (when the offence was a significant cause of a death), the Sentencing Guideline Council's guideline. The prosecutor may also advise the magistrates what their representations on venue would have been, had a not guilty or no indication of plea been entered and the plea before venue procedure had taken place11. The court will then decide whether or not to deal with the case themselves or (if the court is of the opinion that the sentencing powers of the magistrates court are not sufficient) to commit for sentence to the Crown Court.
12. The Magistrates Court sentencing guidelines (see above) indicate that the offences under the HSWA are serious and "particular care needs to be taken when considering whether to accept jurisdiction or to commit a case to the Crown Court, especially when the defendant is a large company.
13. Cases involving a fatality will not be suitable for sentence in the Magistrates Court when the prosecution say that the offence was a significant cause of the death (see link to sentencing guideline above) as the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
14. If the defendant pleads not guilty, or fails to indicate how s/he would plead, the prosecution and then the defendant, will be asked whether summary trial or trial on indictment is more suitable.
15. When deciding whether to recommend trial on indictment you should consider the factors given in the Enforcement Policy Statement including sentencing guidelines and case law (see paragragh 10 above). You can refer to these when making your representations and relate them to the facts of your case. When dealing with a fatality where it is proved that the offence was a 'significant cause of death' not simply that death occurred, the Sentencing Guidelines Council on Corporate Manslaughter & Health and Safety Offences Causing Death apply. In these circumstances the appropriate fine will seldom be less than £100,000, therefore it is difficult to envisage when such cases would be suitable to be dealt with on summary trial in the Magistrates Court. If you do recommend trial on indictment, but you know that the defendants are seeking summary trial, then you should give your reasons for your recommendation.
16. You will be given the opportunity to inform the court of the defendant’s previous convictions (if any) and there will be representations by both the prosecution and defence. The allocation guidelines state that either-way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. The court will assess the likely sentence in light of the prosecution case, but will also take into account all aspects of the case including those advanced by the defence.
17. You are entitled to have regard to the delay, additional cost, and possible adverse effect upon witnesses occasioned by proceeding on indictment but prosecutors should recommend Crown Court trial when they are satisfied that the guidelines require them to do so 12.
18. If a case is heard by the magistrates, they may nevertheless commit both individuals and companies to the Crown Court for sentence. 13
19. If you think that the case should proceed on summary trial, you should simply say so (but the magistrates may require you to go into further details).
20. The magistrates must then decide whether they feel that the case is suitable for trial on indictment or not. In making this decision they will take into account the representations made by you and the defence. They will also consider the nature of the case, any circumstances which make the offence one of a serious character, whether the penalty that the magistrates could inflict would be adequate, and any other relevant circumstances (Practice Direction (Criminal Proceedings:Consolidation) ).
21. Where cases involve complex questions of fact or difficult questions of law, the magistrates should consider committal to the Crown Court.
22. As already stated, there may be circumstances when previous advice or enforcement action other than criminal proceedings would assist the court in determining the seriousness of the case and whether the court's powers of punishment are adequate.
23. Where the magistrates consider the offence is suitable for summary trial, the defendant is told of this, and warned that, even after a summary trial, the magistrates may nevertheless send the defendant to the Crown Court for sentence where they feel the offence merits greater punishment than they have the power to impose. The defendant will then be asked: "Do you wish to be tried by this court or do you wish to be tried by a jury?" 14
24. A defendant therefore has to agree to a summary trial if this is the course of action to be followed, but has the right to "elect" or choose jury trial. In simple terms this means that the defendant still has the choice to elect a Crown Court trial even if the magistrates' court decides that a case is suitable for summary trial.
25. If they do agree then the case will be adjourned to a date in the future for trial, but the court will want to fix the trial date straight away so it is important that you are prepared. You will need to have all witnesses’ availability to hand and be aware of the issues that are likely to be contested at any trial.
26. It is not always clear to the court that the prosecution regards defendants as co-defendants or that the cases are linked. If this is the case, make sure you bring it to the attention of the court.
27. Where more than one defendant has been involved with an event which gives rise to a prosecution you should be prepared to argue that the circumstances of each defendant's involvement are so inextricably linked with the others that the charges should be heard together in order to save time and allow the court to decide relative degrees of blame.
28. Where magistrates consider offences to be suitable for trial on indictment, the defendant will be sent to the Crown Court forthwith and a date for the first hearing at the Crown Court will be provided. Counsel will then need to be instructed as soon as possible in readiness for the Plea & Case Management Hearing at the Crown Court.
31. If the defendant pleads guilty at a magistrates' court, and the court determines that the sentence should be greater than it has power to impose, the defendant will be committed to the Crown Court for sentence.
32. Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 12th March 2015. This has the effect of increasing the level of fine available for Magistrates Courts to an unlimited fine (currently £20,000 for most health and safety offences). However, the increase will only apply in respect of offences committed after 12th March 2015. Apart from elements of the allocation procedure (see below) the procedures set out above will still apply.
33. When the provision does apply it is likely that more cases will be suitable to be dealt with by the Magistrates Court than previously because their powers of sentence will be sufficient. However, HSE’s view is that our most serious offences (e.g. fatalities) should still be heard in the Crown Court and expects that courts will allocate the most serious cases for trial in the Crown Court or commit for sentence to the Crown Court after a guilty plea. .
34. The Criminal Practice Direction has been amended by (the Criminal Practice Direction (Amendment No. 2) 2014) so that for offences committed after the 12th March 2015 a District Judge must deal with any allocation decision, trial and sentencing hearing in the following types of cases which are triable either way:
35. Many of HSE’s more serious cases are likely to come within these types of cases.
36. The prosecutor should inform the justices’ clerk where practicable of any case of the type mentioned above, no less than 7 days before the first hearing to ensure that an authorised District Judge is available at the first hearing.
37. Section 3 of the Powers of Criminal Courts(Sentence) Act 2000 can be invoked where, despite the magistrates’ court having maximum fine powers available to it, the offence or combination of offences make it so serious that the Crown Court should deal with it as though the defendant had been convicted on indictment. As the practice direction makes clear, an authorised District Judge should consider allocating the case to the Crown Court or committing the accused for sentence.