Preparing for sentencing hearings

• Basis on which a court will sentence
• Means of the defendant
• Sentencing bundles
• Case law bundles

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

12. When analysing accounts features to consider will include

• The amount and changes to Turnover and Profit (Gross and Net)
• Liabilities and the reasons for (and amounts of) debts and the identity of debtors
• Director’s salaries, dividends, loans and pension contributions. (the financial position may be healthier when loans are repaid and increases in salaries may distort the financial position)  
• Contingencies (monies may have been set aside in anticipation of enforcement action)
• The corporate structure may reveal that the company is part of a wider group (the defendant may be the parent/holding company or a subsidiary).  There may be inter- company transactions (loans/payments) between the companies which if repaid could have an impact on the liquidity of the defendant.

13. 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”.

14. 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.

15. 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.

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

Sentencing bundles

17. 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 Guidelines⁵ 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.⁶ 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.

18. 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.

19. 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

20. 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 sentence⁷ (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 offences⁸. You should provide the court and defence with a copy of any authorities you intend to rely on.

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

• R v Associated Octel Co. Ltd (Costs) [1997] 1 Cr App R (S) 435, CA. HSE is entitled to recover the costs of the investigation leading to the conviction, not merely the legal costs.
• R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249. The Court of Appeal expressed the view that the level of fines imposed generally for health and safety cases was too low. The Court stated that it was impossible to lay down a tariff for sentencing and that each case must be dealt with according to its own particular circumstances. The Court set out non-exhaustive lists of aggravating, mitigating and other relevant factors that a court might consider in deciding upon sentence. The case also contains a number of other principles: that defendants should supply accounts and other financial information or the court will be entitled to assume they can pay any fine the court chooses to levy; that the standard of care imposed by health and safety legislation is the same regardless of the size of the company; that when the defendant is a company, the fine needs to be large enough that shareholders as well as managers will take notice; that a fine should not, in general, be so large as to imperil the defendant’s continued trading, but there may be exceptional cases where a defendant ought not to be in business; and that there is no reason in principle why a defendant who is capable of paying the whole of the prosecution’s costs should not do so, or why such an award should be scaled down so as not to exceed the fine. See also Factors relevant to sentencing and Imposing the sentence.
• R v Friskies Petcare (UK) Ltd [2000] 2 Cr App R (S) 401. This case covers the Friskies schedule; see Friskies schedules and Factors relevant to sentencing.
• R v Rollco Screw & River Co and Others [1999] 2 Cr App R (S) 436, CA. In considering a period in which a corporate defendant can pay off a fine, a longer period than one that would be imposed on an individual defendant might be acceptable (see also R v Aceblade Ltd t/a Rand & Asquith Ltd [2001] 1 Cr App R (S) 105). The Court also stated that, in cases where the defendant was a small company, where directors and shareholders are likely to be the same people, the court should be wary of inflicting double punishment by fining both; nevertheless, there is a personal responsibility on directors which they cannot 'simply shuffle off' onto the company.
• R v B&Q plc [2005] EWCA Crim 2297. Where a fine is imposed on a large company, the seriousness of the offending and the impact of the penalty can be brought home by requiring the fine to be paid “either immediately or in a period of days measured in single figures, unless very cogent evidence is provided to the court that more time is needed” (Thomas LJ). In the case of small companies and partnerships where a longer period is required (see the Rollco case above), the first instalment should be made payable at a very early date to bring home 'the effects of the criminality'.
• R v Colthrop Board Mill Ltd [2002] EWCA Crim 520. The Court of Appeal stated that £500,000 is not an upper limit for a health and safety fine, nor should a fine of this size be confined to cases with an element of major public disaster.
• R v Keltbray Ltd [2001] Cr App R (S) 39. The judge followed the principle of fining at a higher level.
• R v Yorkshire Sheeting & Insulation Limited [2003] EWCA Crim 458, R v Environmental Tyre Disposals Ltd [2005] EWCA Crim 2687, R v Jarvis Facilities Ltd (citation below) and R v Southampton University Hospital Trust [2006] EWCA Crim 2971. There is no standard tariff for sentencing in health and safety cases; the court is required to consider each case on an individual basis. See also the Howe judgment (above) and The sentencing hearing.
• R v Milford Haven Port Authority [2000] 2 Cr App R (S) 423, CA, endorsed in R v Balfour Beatty Rail Infrastructure Ltd (below) and R v Southampton University Hospital Trust [2006] EWCA Crim 2971: where a defendant is a public body, the court will take this into account as one factor in determining the size of fine. See also ‘Assessing the correct fine’ in Imposing the sentence.
• R v Jarvis Facilities Ltd [2005] EWCA Crim 1409. The court is entitled to take a more serious view of breaches of health and safety law where there is a ‘significant public element’ to the work activity, “particularly where public safety is entrusted to companies … and where the general public simply has to trust in the competence and efficiency of such companies” (at para 11).
• R v Balfour Beatty Rail Infrastructure Ltd [2006] EWCA Crim 1586, CA. A fine of sufficient size to have an impact on shareholders will provide a powerful incentive for management to comply with duties under health and safety law, and will satisfy the requirement for the sentence both to act as a deterrent and to punish the company for culpable failure to pay due regard to safety. Fines for a breach of duty that consists of a systemic failure attributable to the fault of management will be much larger than those for a breach resulting from the negligence or inadvertence of an individual. The Court also endorsed thirteen sentencing principles summarised by the trial judge, derived from the judgment in Howe and subsequent cases.
• R v Warley Magistrates Court ex parte DPP [1998] 2 Cr App R 307. Magistrates must take into account the discount to be granted on a plea of guilty when considering whether their sentencing powers were adequate. If, after making an appropriate discount for a guilty plea, magistrates concluded that they had the power to impose an appropriate sentence they should do so. However, where, even with allowance for a guilty plea and mitigation, the nature of the offence required a sentence greater than they could impose, they should be ready to commit the accused to the Crown Court, but s/he should first be allowed to make representations. In addition, the court could consider all relevant aspects of the accused's character and antecedents before making the decision as to whether or not to commit and, where such a decision required the resolution of a dispute as to the facts, the magistrates should conduct a Newton hearing.
• R v Fresha Bakeries Ltd [2002] EWCA Crim 1451.  The Court of Appeal held that a sentencing court is entitled to order one co-defendant to pay a greater share of the prosecution costs than those that relate to him alone.  A judge might decide that one co-defendant is more responsible than the others for the criminal conduct.
• R v Bodycote HIP [2010] EWCA Crim 802 - Appeal against a fine of £533,000 for breach of section 2(1) (HSWA) that led to the death of two workers.  Although the Guideline did not apply (pre 15/2/10) when the first instance case was heard, if it had applied C of A would still have upheld the fine and dismissed the appeal.  Two individuals had lost their lives and the defendant’s systems to deal with the risk posed were described as “woefully inadequate”, the Court of Appeal supported the high fine and confirmed that it would have been consistent with the Guideline had it applied. Would have been £800,000 without guilty plea and defence argument that cases showed £600k was some sort of “benchmark” was rejected There is no tariff and references to earlier cases could only have a limited function of providing  a "broad feel” to ensure that the penalty in a case is not arbitrarily fixed
• R v Marble City Ltd [2010] EWCA Crim 1872- The first time the Court of Appeal has considered the effect of the Sentencing Guideline Employee fatally crushed by slab being unloaded from back of a lorry and others seriously injured. Company pleaded guilty to breaching sub-sections 2(1) and 3(1) of the Act The judge, applying the new guidelines, imposed a fine of £100,000 against the company, plus costs of £47,564, and fines of £10,000 each against the two directors. In her judgment, the defendants had fallen considerably short of the standard of care required by the Act, and this had been a partial – although not the only – cause of the death. Given the seriousness of the breach, the judge started at £150,000 when considering the level of fines against the company The ultimate fine of £100,000 reflected full credit for the guilty plea, and accounted for a number of mitigating factors, including the steps taken by the company to remedy the defect in its health and safety system . On appeal the fines were upheld Thomas LJ recognised that the guidelines represented a clean break with the level of fines to be found in previous case law. The “old figures are no longer valid”, and he contemplated a fine of £10 million for a conglomerate. However, the new fines indicate, he suggested, much more concentration on the financial condition of the company. Therefore the question of whether the company can pay is important “because you don’t want to visit the sins of the company on the other employees”. On the other hand, “putting cowboys out of business is the best thing to do”. On the crucial point of the correct starting point from which to derive the level of fines, the court emphasised that the sentencing guidelines “quite deliberately contain no starting-point”. The court identified the reason for this in the foreword to the guidelines written by Lord Judge, the Lord Chief Justice and Chairman of the Sentencing Guidelines Council, who acknowledged that the guidelines take a “different form from that used for most other offences”, as a result of the very “wide variation in culpability” between defendant companies.

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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. See [Magistrates’ Court Sentencing Guidelines SE 229] pages 181-183b as amended with effect from 28/10/09
6. See Sentencing guideline for Corporate Manslaughter and Health and Safety offences causing death
7. 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.
8. 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