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. 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 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.
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:
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.
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.
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.
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).
16. Defence advocates may cite decided cases as examples of appropriate sentences on health and safety offences in an effort to encourage the sentencing court to adopt a “tariff” approach to the sentence. They may refer to such cases solely by producing printouts from the HSE prosecutions database, and the case of R v (UK) Ltd AGC Automotive  EWCA Crim 3396 has been used to support this approach. This guidance sets out HSE’s current position on tariffs, and gives guidance on how to answer such a defence application.
17. The general position on sentencing in health and safety cases is set out in the “Factors relevant to sentencing” section (http://intranet/legal/enforcement-guide-ew/court/sentencing-factors.htm)
In particular, it provides a list of relevant cases to include in a sentencing bundle.
18. These cases set out the general principles which apply to the sentencing of health and safety prosecutions. The main judgment is still R v F Howe & Son (Engineers) Ltd but other authorities such as R v Colthrop Board Mill Ltd, R v Balfour Beatty Rail Infrastructure Ltd and R v Yorkshire Sheeting & Insulation Limited are also relevant. They make it clear that a “tariff” approach to health and safety cases is not appropriate:
The court has also considered the position in Howe more recently.
19. The 2007 AGC Automotive case referred to above (which was a Court of Appeal judgment) concerned a contractor who was hit by a fork lift truck. He was badly injured but there was no fatality. The defence appealed against the level of fine. In his judgment, Mr Justice Underhill stated:
As to what the normal scale of penalties is, it is right that this Court has consistently declined to set any kind of tariff because of the very wide variety of circumstances attending prosecutions of this kind. Nevertheless, levels of fine should not be wholly arbitrary, and it is possible by looking at a range of recent cases in this Court (to which we were helpfully referred) to get a broad feel for the levels of fine imposed in cases of different levels of gravity. It is important in doing so to bear in mind that in some cases the court would be influenced by considerations of affordability or means, particularly where the defendant is a small business or is in the public sector.
20. This quotation may be used by defence advocates as an argument for supporting a tariff approach. However, it is important to note that the judge makes it clear that only sentencing cases dealt with at Court of Appeal level should be considered for possible guidance. The applicability of the case is therefore limited.
21. It has subsequently been considered in R v TDG  EWCA Crim 1963. This was also a Court of Appeal authority. It did concern a fatality, where a worker was killed when a trailer rolled backwards on to him. The court quoted the comments in AGC, again making it clear that only authorities of Court of Appeal level should be used in the sentencing exercise.
22. AGC and TDG were both referred to in R v Bodycote HIP  EWCA Crim 802. Again, this case concerned a fatal accident, where workers were asphyxiated by argon gas which had escaped from a hot isostatic press. In that case Mr Justice Nicol in the CA judgment commented:
Since there is no tariff, since consistency is not a primary aim in this area of sentencing, the references to earlier cases has the much more limited function of providing only a “broad feel” of the level of fine to ensure that the penalty in the instant case is not arbitrarily fixed. The judge refused to adopt a “benchmark”.
This further limits the relevance of “precedent” sentences.
23. It should also be noted that this case was decided before the Sentencing Guidelines on Corporate Manslaughter and Health and Safety Offences causing Death came into force. Prosecution advocates should now argue that any comparison with previous sentences for tariff purposes in fatal cases is incorrect – the court should simply apply the sentencing guidelines.
The most recent relevant sentencing cases are:
24. The approach for prosecuting advocates when faced with a defence application to adopt a “tariff” approach is therefore:
In no circumstances should the prosecution agree to printouts from the HSE database being put forward or referred to and any attempt by the defence to rely on these should be strongly opposed. In most cases these cases will, in any event, be first instance cases and the factual details in the printout will be limited.
25. 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.
26. 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
27. 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.
28. Further guidance on committals for sentence can be found in the Crown Court section.