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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 the defendant indicates an acceptable plea, the defence advocate should reduce the basis of plea to writing. This should be done in all cases save for those in which the defendant has indicated that the guilty plea has been or will be tendered on the basis of the prosecution case1.

3. 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

4. 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 primary obligation to provide financial information lies on the defendant but in cases in which the offence was a significant cause of a death it is helpful if the prosecution takes the preliminary step of calling upon the defendant to provide it and, if the defendant does not do so, of assembling what can be obtained from public records and furnishing it to the court.2

The Friskies schedule 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.

5. 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 fine3. 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.

6. The court has the power to order an individual to give a statement of his/her financial circumstances to the court before sentencing4. 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.

7. Although the duty to provide financial information to the court rests with the defendant, the prosecution are not obliged to accept the accuracy of such information. There may be cases in which you suspect that the ability of the defendant to pay a fine and/or costs may not be as restricted as the financial information might suggest.

8. After a guilty plea has been indicated it is good practice to ask the defence whether the question of “ability to pay” will be raised. If it is then the prosecution should request copies of any financial documents that the defence intend to rely on in court at least 10 days before the sentencing hearing. Otherwise you may find such information is provided on the day of the sentencing hearing itself with little time to consider it.

9. In the case of individual defendants the documentation should include personal tax returns, details of personal and business bank accounts and a statement of assets.

10. For corporate defendants the documentation should include copies of accounts filed at Companies House (although these are likely to be abbreviated accounts which may not tell the whole story). For companies with a turnover of less than £5.6 million full member/shareholder (internal accounts) are likely to be much more detailed.  

11. In the case of a corporate defendant, the information usually will include details of the defendant’s corporate structure; annual profit and loss accounts, or extracts; annual balance sheets, or extracts; details of shareholders’ receipts; and details of the remuneration of directors or other officers.5

12. When the defendant is a partner /partnership then the Partnership accounts are likely to be produced.

13. When analysing accounts features to consider will include

14. Having received the information you should then consider whether further enquiries and/or input from a financial expert such as a forensic accountant is required bearing in mind that such costs may be recoverable only if the court agrees that they are “just and reasonable”.

15. For example if there is evidence of large or unexplained reductions, transfers, disposals and anomalies in the accounts you should ask for clarification from the defence and in exceptional cases consider requesting an adjournment of the sentencing hearing to consider them further and possibly seek the assistance of a financial expert.

16. When a defendant has indicated that they are unable to pay a fine or costs and you have serious doubts about the accuracy of their financial position, you may consider instructing a forensic accountant  who can provide an independent opinion on large or unexplained financial movements; what further information might be sought and the current financial status of the defendant. If necessary the financial accountant can be called to testify at the sentencing hearing. Such a course should be the exception rather than the rule but HSE has successfully challenged the financial position of defendants by the use of a forensic accountant.

17. In an appeal against sentence the prosecution had drawn the courts attention to the repayment of a directors loan during the course of an investigation. The Court of Appeal said that “We think it important to stress for the purposes of a sentencing exercise such as this that the net assets of a company as shown in its accounts are not necessarily to be determinative of its ability to pay. The level of the appropriate fine is not to be dictated exclusively by a defendant's balance sheet. It would be quite wrong for a company to be permitted to take advantage of manoeuvering with a view to reducing contingent claims of the Health and Safety Executive by reducing the cash balances in the way that seems to have happened here. Such manoeuvering (and we do not think that an unfair word to use) does not overcome the realities of the situation. At all events, we think the judge was entitled here to take those matters into account in assessing the company's means to pay." (R v MM Contracting Ltd [2012] EWCA Crim 2215).

18. Further advice on the use of a forensic accountant can be sought from Legal Advisers office.

Sentencing bundles

19. Part of the prosecution’s role at sentencing is to be available to assist the court in determining the appropriate sentence. 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 Guidelines6 available. If the prosecution allege that the health and safety offence was a significant cause of a death you should also have the Sentencing Guideline available.7 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.

20. If you intend to rely on the initial details of the prosecution case you have previously served, it is strongly suggested that you prepare a paginated copy for the court.

21. 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

22. It is a part of the duty of the prosecution to draw a sentencing judge’s attention to any relevant cases and sentencing guidelines (e.g. Magistrates Court sentencing guidelines or guidelines for offences causing death) that assist and give guidance to the judge in imposing an appropriate sentence8 (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 offences9. You should provide the court and defence with a copy of any authorities you intend to rely on.

23. The following authorities are useful, although the list is not exhaustive:


Footnotes

  1. See Attorney Generals Guidelines on acceptable pleas and the prosecutors role in the sentencing exercise
  2. See Sentencing guideline for Corporate Manslaughter and Health and Safety offences causing death
  3. Criminal Justice Act 2003, s.164(1)
  4. CJA 2003, s.162
  5. Criminal Practice Direction Sentencing Q
  6. See [Magistrates’ Court Sentencing Guidelines SE 229] pages 181-183b as amended with effect from 28/10/09
  7. See Sentencing guideline for Corporate Manslaughter and Health and Safety offences causing death
  8. 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.
  9. When sentencing for an offence committed after 6/4/10 a court must follow any relevant sentencing guidelines unless contrary to the interests of justice to do so. S125 Coroners and Justice Act 2009.
Updated 2014-10-09