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Preparing for the sentencing hearing

The role of the prosecutor

1. When preparing a case for sentence it is important to understand the role of the prosecutor. In addition to outlining the facts of the case and the relevant statutory provisions relating to the offence it is also the duty of the prosecution to assist the court with regard to sentencing.

2. The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. (see The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise).

3. Prosecutors therefore play an important role both at the sentencing hearing itself (see the next section on the sentencing hearing) and when drafting documents for service in advance of the hearing.

4. Although suggesting an actual sentence would go beyond the proper role of the prosecution it is the prosecutors duty in the magistrates’ court to:

  1. summarise the prosecution case, if the sentencing court has not heard evidence;
  2. identify any offence to be taken into consideration in sentencing;
  3. provide information relevant to sentence, including any statement of the effect of the offence on the victim, the victim’s family or others; and
  4. where it is likely to assist the court, identify any other matter relevant to sentence, including—
    1. the legislation applicable, 
    2. any sentencing guidelines, or guideline cases,
    3. aggravating and mitigating features affecting the defendant’s culpability and the harm which the offence caused, was intended to cause or might forseeably have caused, and
    4. the effect of such of the information listed in paragraph (2)(a) (the pre-sentence report and financial information) as the court may need to take into account (Criminal Procedure Rules 24.11.3)

5. It follows that, when preparing for sentencing hearings the prosecutor in a health and safety case should consider how the Court might apply the Sentencing Counsels Definitive Guideline for the sentencing of health and safety cases. The Guideline is considered in detail later in the section on the sentencing hearing and imposing the sentence. It applies to organisations and individuals convicted of most health and safety cases and must be applied to all cases (regardless of the date of the offence) which are sentenced on and after 1st February 2016.

The Friskies Schedule

6. In the case of R v Friskies Petcare Ltd (2002), the Court of Appeal gave guidance about the presentation of health and safety prosecutions. Notwithstanding the Definitive Guideline it is still good practice to follow this guidance.  To assist in the sentencing process, the Court outlined the approach that both the prosecution and defence should adopt with regard to the identification of aggravating and mitigating features:

7. The Friskies schedule, summarising the facts of the case and setting out the prosecutions view of the category of offence (based on culpability and harm) together with any aggravating and/or mitigating factors that you accept are present, should normally be served on the defendant at the same time as the Summons.

8. It is not appropriate for the prosecutor to suggest a sentence but should remind the court of the maximum sentence and the application of the Definitive guideline.

9. We should provide our view of the offence category and factors which increase or mitigate seriousness (applying the Guideline) and should be prepared to assist the Court with the application of the guideline.

10. Prosecutors should state whether the case is suitable for the magistrates to sentence or whether the Crown Court is the most appropriate venue. An example of a simple Friskies schedule is given at the end of this section, together with an example of a covering letter (see ‘Model examples’).

11. In cases sentenced in the Crown Court the prosecution advocate is likely to draft a case summary which will also contain the prosecutions view on factors relevant to sentence including the application of the Definitive Guideline. No such document should be finalised and served without the input and approval of the Inspector in the case.

12. If the defendant intends to plead guilty, the defence should respond with a similar document setting out the mitigating features it believes are present. The prosecution may not have sufficient evidence to agree (or dispute) one or more of the mitigating features proposed by the defence. In such a situation, you should explain the position to the defence and, whilst you will not object to those particular mitigating features, you should decline to agree them. The defence will put its own account of those features to the court at the sentencing hearing.

13. In the magistrates’ court, if the aggravating, mitigating and other relevant factors can be agreed with the defence the prosecution should prepare a final document for the court. If the factors cannot be agreed (and it is perfectly proper for the prosecution to maintain its view of the case supported by the evidence), they should explain the reason(s) for this to the defence and present their view, as set out in the Friskies schedule already submitted to the court and defence, to the court at the sentencing hearing. If there is a disagreement of substance regarding the Friskies schedule, such that an agreed basis of plea cannot be presented to the court, a Newton hearing may be necessary. See the sections on Basis of plea and Newton hearings for further guidance.

14. The Friskies schedule is useful at a number of stages in the legal process:

Guideline sentencing cases

15. The previous practice of providing guideline sentencing cases in health and safety prosecutions will be of very limited relevance now that the Definitive Guideline is in operation.

Turnover (or equivalent) and obtaining financial information

16. The Definitive Guideline focuses on the turnover or equivalent of an organisation to reach a starting point for a fine. Similarly the financial position of an individual defendant is relevant when a court is determining a fine.

17. As set out in the Definitive Guideline, “the offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case, which may include the inference that the offender can pay any fine”.

18. The Guideline sets out the type of financial information expected from different types of organisation.

19. You should make sure that you have the accounts or equivalent of the defendant before the hearing. The primary obligation to provide financial information lies on the defendant but 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.

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

21. 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.

22. 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.

23. 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.

24. 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.  

25. In the case of a corporate defendant, the information will usually 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.

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

27. When analysing accounts features to consider will include:

28. 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”.

29. 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.

30. 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.

31. 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).

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

Basis of Plea

33. 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 offence category or the aggravating or mitigating features may not be in accordance with the prosecution case as you see it. It is important to consider such differences prior to the sentencing hearing.

34. 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.)

35. 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 the prosecutor has not seen in advance of the plea hearing they should inform the Court of this and ask for time to consider the document.

36. The prosecutor should carefully consider the basis of plea taking account of the position of any other relevant defendant where appropriate and should inform the defence in advance of the hearing if they disagree with its content and why.

37. 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 (see the  Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise).

38. Where the prosecutor disagrees 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.

39. 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 court is made aware of any discrepancy and of the consideration which must be given to holding a Newton hearing to resolve the issue. See the Sentencing Hearing section for more detail.

40. 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.

41. Where an agreed basis of plea exists, the court will usually sentence on that basis, although it is not bound to do so.

Sentencing Bundles

42. 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.

43. You should consider which evidence in addition to the Friskies Schedule (such as witness statements including victim personal statements, previous convictions, photographs and other exhibits) you wish to refer to the sentencing court. You should prepare and serve (on the court and the defence) a paginated sentencing bundle containing the relevant information unless the initial details already served on the court and defence contain the relevant information in a paginated format.

44. It is a part of the duty of the prosecution to draw a sentencing judge’s attention to any relevant cases and sentencing guidelines that assist and give guidance to the judge in imposing an appropriate sentence. It will be helpful to provide a copy of the Definitive Guideline to the Court for example with the Friskies Schedule or prior to the sentencing hearing.

45. If you intend to rely on a guideline case (which is unlikely given the application of the Definitive Guideline) you should serve a copy on the defence and court in advance of the hearing.

Victim Personal Statements

46. 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 VII Sentencing). It is important that up to date information is obtained before the sentencing hearing including, if necessary, in an additional VPS.

47. 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.

48. 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.

49. See the section dealing with the Sentencing Hearing for more information about a VPS.

Updated 2016-02-12