1. A sentencing hearing will usually follow the procedure below:
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.
4. See earlier in the section on Preparing for the sentencing hearing.
5. Any victim personal statement (VPS) taken during the investigation should be considered and taken into account by the court prior to passing sentence (Criminal Practice Direction, Sentencing F).
6. The VPS should be provided to the defence prior to the sentencing hearing and will be provided to the court (after conviction) in the sentencing bundle. The consequence of the offence for the victim is a relevant factor for the court, but any opinions expressed by the victim as to what the sentence should be are not relevant; courts will not take account of any such comments.
7. Evidence of the effects of an offence on the victim contained in the VPS or other statement, must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert’s report; and served in good time upon the defendant’s solicitor or the defendant, if he is not represented. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on the victim.
8. In all cases it will be appropriate for a VPS to be referred to in the course of the sentencing hearing and/or in the sentencing remarks. Subject to the court’s discretion, the contents of the VPS may be summarised and in an appropriate case even read out in open court.
9. The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim’s close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them. The VPS may also provide information relevant to a possible compensation order. Instructions on the use of victim personal statements are given in OC130/12.
10. When considering whether to accept a plea offered by the defendant, prosecutors should ensure that the interests and, where possible, the views of the victim or the family are taken into account when deciding whether it is in the public's interest, as defined by the Code for Crown Prosecutors (para 9.3 ), to accept or reject the plea (see the Attorney General's guidelines on the acceptance of pleas and the prosecutor's role in sentencing.)
11. See earlier in the section on Preparing for the sentencing hearing.
12. 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.
13. 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 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.
14. Prior to the introduction of the Definitive Guideline, some defendants sought to introduce details of sentences in other cases as part of their mitigation. As there was previously no tariff in health and safety cases such practice was rarely appropriate (as cases are factually different and defendants have different means) apart from providing the court with a broad feel for health and safety cases.
15. With the introduction of the Definitive Guideline, reference to other sentencing cases is to be avoided. Indeed, the Court of Appeal has said it was impermissible to have given the sentencing judge or the Court of Appeal a bundle of cases that were irrelevant to the sentencing exercise. "It is important that practitioners appreciate that our system now proceeds on the basis of guidelines, not case law. It will, therefore, be very rare, where there is an applicable guideline, for any party to cite to this court cases that seek to express how the guideline works, other than in the rare circumstances we have set out...where a case comes before a sentencing judge, it is important that matters follow the same course"1.
16. 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.
17. 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.
You should refer to The hearing for further guidance on Newton hearings.
18. When sentencing organisations and individuals for most health and safety cases, the magistrates’ court and the Crown Court must apply the Definitive Guideline (Section 125(1) of the Coroners and Justice Act 2009- for offences committed on or after 6th April 2010 the Court must follow the sentencing guidelines which are relevant to the case unless satisfied that it would be contrary to the interests of justice to do so).
19. The Guideline applies to the sentencing of organisations who commit offences involving a breach of an employer’s duty towards employees and non-employees; a breach of the duty of the self-employed to others (Health and Safety at Work Act 1974 (section 33(1)(a) for breaches of sections 2 and 3) as well as a breach of Health and Safety regulation contrary to section 33(1)(c)).
20. It does not apply to breaches of Section 4 or 6 HSWA. It also applies to all offences irrespective of whether any harm was caused.
21. There are nine steps for the court to work through when applying the guideline but steps 1 - 4 are the most important. The first step is to determine the offence category using culpability and harm factors.
22. The guideline sets out the different levels of culpability (from very high to low) with descriptors against each to assist the court to decide on the level of culpability.
23. For culpability to be “very high” there has to be evidence of a deliberate breach or flagrant disregard for the law. It is not thought that many cases will come within this level. However, an example could be a gas fitter who deliberately does gas work without being registered.
24. “High culpability” is described either as falling far short of the appropriate standard and/or where there are serious or systemic failings.
25. The “medium” level is described as falling between high and low culpability.
26. “Low” is described as where the offender did not fall far short of the standard. One example in the guideline of low culpability is said to be when there was no warning or it was an isolated incident.
27. In many cases a number of factors may apply which fall into different levels of culpability. The guideline makes clear that in such cases the court should balance the factors to reach a fair assessment of the offender’s culpability.
28. Most cases will probably fall into either the high or medium categories.
29. The prosecution should indicate which level of culpability they say is appropriate based on the evidence in the case.
30. Next (and still part of Step One) the court needs to determine the harm category using the table in the guideline. The levels of harm are based on the level of harm risked.
31. Level A harm includes death and physical impairment resulting in lifelong dependency on 3rd party care.
32. Level B harm includes physical impairment not amounting to Level A harm but which still has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or to return to work.
33. Level C harm is a catch-all for cases not falling into Levels A or B.
34. To determine the harm category (from 1- highest to 4 - lowest), the court needs to consider both the risk of harm and the likelihood of that harm arising. So, where for example, the facts reveal a risk of death with a medium likelihood of death occurring there would be a Harm category 2.
35. The court then has to consider whether the offence exposed a number of people to risk of harm and whether the offence was a significant cause of actual harm.
36. If one or both apply the court must consider moving up a harm category (e.g. in the case just mentioned moving from category 2 to 1) or to increase the level of the fine within the range for that category. The Court should not, however, move up a harm category if actual harm was caused but to a lesser degree than the harm risked.
37. Significant cause of actual harm means “a cause which more than minimally, negligibly or trivially contributed to the outcome. It does not have to be the sole or principal cause”.
38. The guideline also makes clear that the actions of victims are unlikely to be considered contributory events as offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable.
39. At Step two the court sets the initial starting point and range for the fine.
40. The Court is required to focus on the organisation’s annual turnover or equivalent.
41. The offender is expected to provide accounts for the last three years and if it doesn’t, the court can draw reasonable inferences- including that the offender can pay any fine.
42. The guideline does not provide any assistance as to how to deal with linked companies other than to say that normally only the information relating to the offender organisation will be relevant (confirming that the court cannot pierce the corporate veil). However, it does say that exceptionally the resources of a linked organisation may be able to be taken into account.
43. The Guideline stipulates the type of financial information required from different types of organisations.
44. Once the Court has determined the annual turnover (or equivalent) of the organisation it then uses one of 4 tables to determine the starting point and range for the fine. There is a table for a:
45. For example, for a Large company being sentenced for a harm category 2 offence with medium culpability, the starting point is a fine of £600,000 with a range of £300,000 to £1.5 million. In most fatality cases there is likely to be a high risk of death so the harm category will be harm category 1 with medium culpability the starting point would be £1.3 million with a range of £800,000 to £3.25 million. However, as death actually resulted the court would need to consider moving up within the range of fines from the starting point.
46. Next, and still as part of step two, the court has to consider the aggravating and mitigating factors.
47. The prosecution should identify what it sees as aggravating and mitigating factors.
48. The guideline contains a non-exhaustive list. Aggravating factors include: Cost-cutting at the expense of safety, deliberate concealment of illegal nature of activity, breach of any court order, obstruction of justice and a poor health and safety record.
49. Mitigating factors include no previous convictions or no relevant/recent convictions, steps taken to voluntarily remedy the problem, a high level of cooperation beyond that always expected, a good health and safety record.
50. However there could be other factors which are relevant in a particular case.
51. The Court should not consider factors which are already taken into account as factors of culpability or harm.
52. The Court has to identify which factors are present and whether any combination of these should result in an upward or downward adjustment of the starting point for the fine.
53. The guideline makes clear that in some cases it may be appropriate even to move outside the identified category range. Recent relevant previous convictions are likely to result in a substantial upwards adjustment.
54. Step three gives the court considerable discretion and adds flexibility to the application of the guideline. The court must step back, review and if necessary adjust the initial fine based on turnover and ensure it fulfils the objectives of sentencing and meets the general principles in setting a fine. This could result in either an downwards or upwards adjustment.
55. The guideline sets out the general principles for setting a fine that the court has to have regard.
56. The most important (and set out in bold in the guideline) is that the fine must be sufficiently substantial to have a real economic impact which will bring home, both to the management and shareholders, the need to comply with health and safety legislation.
57. A fine must reflect the seriousness of the offence and court must take account of the financial circumstances of the offender. It should reflect the extent to which the offender fell below the required standard. A fine should meet the objectives of sentencing e.g. punishment/deterrence/removal of gain - it should not be cheaper to offend than take appropriate precautions
58. This “step back” step will be important when there is a disconnect between the level of turnover (which will set the initial starting point for the fine) and the actual profits or the financial position of the company.
59. For example where a company has a large turnover but is not actually making much profit, this step could result in a large reduction in the initial starting point set using the tables.
60. However, where a large company has very large profits, the court may consider that the starting point on the tables will not have a real economic impact on the company and so this step could see an increase in the fine.
61. For an organisation which is very large with a turnover significantly above £50 million the guideline provides that in cases where the organisation’s turnover “very greatly exceeds” the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence2.
62. Step Four requires the court to consider any other factors which may warrant an adjustment of the fine. This includes if the organisation is a public body, a requirement that the fine should normally be substantially reduced if the proposed fine would have a significant impact on the provision of their services. However, the impact on shareholders and directors is not to be taken into account.
63. Step Five considers any factors which indicate a reduction, such as a defendant providing assistance to the prosecution. This is unlikely to apply to HSE cases and refers to formal assistance from a defendant (e.g. by agreeing to provide a statement and evidence against other defendants).
64. Step Six provides for a reduction in sentence for guilty pleas. In setting a sentence, the court is obliged to take into account a guilty plea and how early in proceedings the defendant indicated the plea. In the Crown Court, a defendant may ask the judge to give an indication of likely sentence should s/he enter a guilty plea at that stage of the proceedings (see At the Crown Court - Advance sentence indications). The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.
65. At Step Seven, the court must consider whether to make ancillary orders including remediation and compensation although the assessment of compensation in cases involving death or serious injury will usually be complex and will ordinarily be covered by insurance. In the great majority of cases the court should conclude that compensation should be dealt with in the civil court, and should say that no order is made for that reason. See the section on Penalties.
66. At Step Eight the Court considers the Totality principle. This is a general principle which applies when sentencing for a number of offences requiring the court to consider whether the total sentence is just and proportionate.
67. Step Nine confirms that Section 174 of the Criminal Justice Act 2003 imposes a duty on the Court to give reasons for, and explain the effect of, the sentence
68. The Guideline for individuals applies to offences committed by breaches of sections 2, 3 and 7 HSWA and to secondary liability by virtue of S36 and S37 HSWA.
69. The Guideline follows a very similar format to the guideline for organisations, although of course it provides for all sentencing options and not just fines (e.g. custodial and community penalties).
70. Again there are nine steps to follow and steps 1-3 are the most important for the prosecution to consider. As before the prosecution should identify its view of the offence category and aggravating/mitigating features etc.
71. Under Step one the court has to again consider and determine the offence category by reference to culpability and harm.
72. Again the levels of culpability range from very high to low but the descriptors are different and concentrate on guilty knowledge and degrees of fault.
73. High culpability is described as foresight of or wilful blindness to risk, whereas medium is described as an act or omission which a person exercising reasonable care would not take. Low culpability is described as an offence committed with “little fault”.
74. The harm category is determined in the same way as for organisations and the descriptors are also the same (see paragraph 30 above).
75. The court then moves to step 2 and sets the initial starting point and category range based on the level of culpability and the harm category using the table provided.
76. The reference in the Guideline to fine bands - from A (lowest) to F (highest) refers to separate guidance provided to the Magistrates Courts to assess the starting point and range of fines based on % of weekly income whenever they fine an individual.
77. The court then needs to consider further adjustments to allow for aggravating and mitigating factors in the same way as for organisations. Again the list in the Guideline is non-exhaustive.
78. Under step 2 there is specific guidance given to sentencers in relation to custody and community penalties. For custody the court asks itself:
79. For a community penalty it considers:
80. Step 3 again requires the court to “step back” when there is any financial element to the sentence in the same way as for organisations in order to ensure that the fine reflects the seriousness of the offence, the financial circumstances of the offender and fulfils the general principles in setting a fine. Again, this could be an upward or downward movement.
81. The Guideline does not apply to the question of Costs which are considered by applying established principles. See the later section on Costs.
82. In considering the seriousness of any offence, the court must treat each previous conviction of the offender as an aggravating factor, provided the court considers that it can reasonably treat it as such having regard to the nature of the previous conviction, its relevance to the current offence and the time that has elapsed since the conviction. However the Guideline makes it clear that In particular, relevant recent convictions are likely to result in a substantial upward adjustment.
83. Previous convictions for health and safety offences and other such aggravating features should, if relevant to the offence before the court, form part of the Friskies schedule.
84. Evidence of any previous convictions may be given after a defendant has pleaded guilty or has been convicted. The court can be provided with a list of all previous convictions, although this may not always be appropriate; there are no firm rules and judgment should be made on a case by case basis, having regard to the factors which the court will take into account The more relevant or similar the conviction is to the current offence, the older the conviction being put forward might be. In the case of individuals, you should mark on the list any conviction that is spent under the Rehabilitation of Offenders Act 1974. A conviction of an individual that resulted in a fine is now spent one year from the date of conviction and all such convictions are removed from HSE’s public register of convictions after this period. Convictions of corporate bodies are not subject to the ROA 1974; after five years, records of these convictions are moved from the register to a separate Prosecutions History database, which is also publicly available.
85. Where the accused has been convicted of a summary offence but is not present in person before the court, the court may take account of any previous convictions of the accused for summary offences as if s/he had appeared and admitted them, where notice of intention to cite the convictions has been served on him/her at least seven days prior to the hearing. The standard letter SL5 is such a notice.
86. Where a limited company with several premises is prosecuted for an offence at one of its premises, you should provide previous convictions of the company for offences at any of their premises: a limited company is a single legal entity.
87. You should be ready with evidence of previous convictions and any other enforcement action. The record of these should, if possible, have been agreed with the defence beforehand. See also Physical evidence in court - Proof of convictions. It may be helpful to speak to the court clerk before the hearing to make it known that you wish to bring evidence of previous convictions or other enforcement action before the court.
88. 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 (Powers of the Criminal Courts (Sentencing) Act 2000 section s3 to 5). This power applies to both companies and individuals.
89. 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 earlier hat the case was suitable for trial in the Magistrates’ court and no new information has been received.
90. 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 but you should draw the magistrates’ attention to their maximum powers of sentence (depending on the date of the offence - see the section on Penalties) and to the Definitive Guideline and the prosecution’s views on the offence category, aggravating/mitigating factors etc.
91. Further guidance on committals for sentence can be found in the Crown Court section.