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Imposing the sentence

Effect of a guilty plea

1. For some years, a defendant who pleads guilty has generally been able to expect some discount in sentence. This practice recognised that a guilty plea (depending on the timing) avoids the need for a trial, saves the witnesses and the victim from having to give evidence, reduces the cost to the public of dealing with the case and shortens the time between charge and sentence.

2. Courts are now required to take into account the stage of proceedings at which a defendant indicates the intention to plead guilty and the circumstances in which the indication was given1. The Sentencing Guidelines Council (‘SGC’) has issued guidance on the level of reduction in sentence for a guilty plea2, and courts must have regard to it3.

3. If the punishment is less severe as a result, the judge or magistrates must say so4. The court should also usually state what the sentence would have been if there had been no reduction5.

4. The level of the reduction in sentence should be gauged on a sliding scale, ranging from a maximum of:

5. What constitutes the ‘first reasonable opportunity’ will vary from case to case. A court may consider that the defendant’s first court appearance at which s/he could plead guilty was the first reasonable opportunity in a particular case. However, it is open to the court to decide in an appropriate case that it would be reasonable to have expected an earlier indication of guilt; for example, at interview, provided that the defendant and his legal advisers had sufficient information about the allegations7. Most health and safety offences are triable either way, in which case the reduction will be less where the defendant pleads guilty at the first hearing in the Crown Court having failed to do so before the magistrates8. In such a situation, the maximum reduction will be between one third and one quarter.

6. Where the prosecution case is overwhelming and does not rely on admissions from the defendant, the court may consider that a smaller reduction in sentence is justified9. In such cases, a reduction of 20% is likely to be appropriate where the plea was entered at the first reasonable opportunity10.

7. Even where the guilty plea comes very late, it is normally appropriate for the court to give some reduction in sentence11. However, if the not guilty plea was entered and maintained for tactical reasons, a late guilty plea should attract very little, if any, discount in sentence12.

8. At any stage in cases before the Crown Court, the defendant can ask the judge for an indication of the sentence that would be imposed should a guilty plea be entered. The indication would include a reduction for the guilty plea, although the level of reduction would depend on the stage that the proceedings had reached. For further guidance, see Advance sentence indications in the Crown Court section.

Assessing the correct fine

9. Both magistrates and Crown Court judges should impose a fine that, in their opinion, reflects the totality of the offence, taking into account all relevant circumstances, including the financial circumstances of the defendant. The court in Howe13 set out factors that might be relevant in sentencing, including particular aggravating and mitigating features (see the section Factors relevant to sentencing). The defence may seek to persuade the court to take into account low fines imposed in other cases - see The sentencing hearing for guidance on this.

10. Where the defendant is an individual and not a company, the court is under a duty to inquire into his/her financial circumstances before fixing the amount of the fine14. In order to obtain information about the financial circumstances of a defendant who is an individual, the court has the power to make a 'financial circumstances order', requiring the defendant to give this information to the court15. Should a defendant argue that s/he is unable to pay a fine or costs, you may, if necessary, remind the court of its power. Also see the section Preparing for sentencing hearings.

11. A corporate or individual defendant may hold liability insurance cover which includes the payment of legal costs. This may include provision for prosecution and/or the defendant's own costs. If it is anticipated that the defendant will argue they are unable to pay costs in full, the prosecutor should check the position with the defence prior to sentence. The prosecutor should then make the sentencing judge aware of the position when appropriate as it may affect the judge's order on both quantum of costs and time for payment.

12. Where the defendant is a company, the court’s attention should be drawn to the judgment in Howe, which says that a company should supply its accounts if it wishes to show that it cannot pay a fine of a certain size. The court should refer to pre-tax profits when considering the level of fine16. Should a company not supply its accounts, the Court of Appeal in Howe said that the court is entitled to assume that the company can pay any fine it chooses to impose17.

13. The net assets of a company as shown in its accounts are not necessarily to be determinative of its ability to pay.  “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.”( R v MM Contracting Ltd [2012] EWCA Crim 2215)

14. In relation to the size of the fine that should be imposed on a corporate defendant, the attention of the court should be drawn again to the case of Howe, where it was said that:

"The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where that defendant is a company not only to those who manage it but also to its shareholders 18."

The Court of Appeal stated 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. The court must look at the whole sum (fine and costs) it is minded to order the defendant to pay and consider the impact of that sum. For further guidance on the awarding of prosecution costs, see the Costs section.

15. You should also note that small corporate defendants may pay fines over longer periods than are usually given to individuals (R v Rollco Screw & Rivet Co Ltd) and that their fines may be larger as a result. By contrast, fines imposed on large corporate defendants should be paid either immediately or within 10 days unless evidence is provided that more time is needed, so as to bring home the seriousness of the offending and impact of the penalty (R v B&Q Plc [2005] EWCA Crim 2297, CA).

16. Where a defendant is a public body, the court will take this into account as one factor in the case in assessing the size of fine. The court will have regard to how a fine will be paid and its effect on the defendant’s ability to perform its public function19.

17. The Sentencing Guideline for health and safety offences20 which were a significant cause of a death indicates that a fixed correlation between the fine and either turnover or profit is not appropriate. Although the court should look carefully at both in order to gauge the resources of the defendant, The Guideline sets out the kind of information which the court should ordinarily be expected to be provided with. The onus is on the defence to provide it but if it does not the prosecution should provide what can be obtained from public records. The guideline sets out factors to consider when assessing the financial consequences of a fine. Although the effect on employment of the innocent may be relevant the effect on shareholders and directors normally will not.

18. When the health and safety offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.

19. The Magistrates Sentencing Guidelines21 also provide guidance on the level of fines in cases in which the offence was not  a significant cause of a death. Sentencers should determine the appropriate level of fine in accordance with the Criminal Justice Act 2003, which requires offence seriousness and the financial circumstances of the offender to be taken into account. For both individual and corporate offenders, the level of fine should reflect the extent to which the offender fell below the required standard. The sentence should also take account of any economic gain from the offence; it should not be cheaper to offend than to take the appropriate precautions.

The following factors will be relevant when sentencing corporate offenders:

When sentencing public authorities, the court may have regard to the fact that a very substantial financial penalty may inhibit the performance of the public function that the body was set up to fulfil. This is not to suggest that public bodies are subject to a lesser standard of duty or care in safety and environmental matters, but it is proper for the court to take into account all the facts of the case, including how any financial penalty will be paid.

20. See the section Preparing for sentencing hearings for further guidance and a summary of a number of guideline cases on sentencing.

Custodial sentences

21. The court may not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and others associated with it, was so serious that only such a sentence can be justified22. For offences committed on or after 16 January 2009 imprisonment is available as a sentencing option for most health and safety prosecutions of individuals.

Previous convictions

22. 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 21. This may be particularly important where, for example, an employer has been repeatedly convicted of safety offences, as it may enable the court to conclude that the current offence arose from a deliberate disregard of safety rather than mere negligence or oversight.

23. 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.

24. Evidence of any previous convictions may be given after a defendant has pleaded guilty or has been convicted23. 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 (see above). 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 25. 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.

25. 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 26. The standard letter SL5 is such a notice.

26. Where a limited company with several premises is prosecuted for an offence at one of its premises, you may wish to prove previous convictions of the company for offences at any of their premises: a limited company is a single legal entity.

27. 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.

Offences to be taken into consideration

28. A defendant who has been convicted by a court of an offence can ask the court to take other offences into consideration (TICs) when passing sentence 27.  A court will not consider TICs unless a defendant clearly asks it to do so. This does not result in additional convictions and the sentencing powers of the court remain limited to the maximum available for the offence(s) for which the defendant was convicted. Any TIC may, however, be treated as an aggravating feature during the sentencing process.

29. The use of TICs will often not be appropriate in health and safety cases. You should bear in mind the following:

30. If the particular circumstances of the case warrant the use of TICs and the defendant is prepared to ask the court to take other offences into account, you should prepare a list of these. The defendant must be given a full opportunity to study the list and understand the consequences of admitting the offences in this way.

31. At the sentencing stage, when summing up the facts of the case, the prosecution will inform the court of the TICs and give the court the original of the list, signed by the defendant. The court will decide whether to take these other offences into consideration.

32. If you are considering the use of TICs, advice should be sought from your solicitor agent or Legal Adviser’s Office (if instructed in the case) or via your legal liaison point.

Variation of sentence

33. A sentence imposed, or other order made, by either a magistrates’ court 30 or a Crown Court 31 may, in appropriate circumstances, be varied or rescinded, for example, to rectify a mistake on the part of the court as to its sentencing powers.

34. For guidance on appeals against sentence, see Defence rights of appeal.


Footnotes

  1. Section 144(1) Criminal Justice Act (‘CJA’) 2003.
  2. Reduction in Sentence for a Guilty Plea (July 2007)
  3. Sections 170(9) and 172 CJA 2003.
  4. CJA 2003, s.174(2)(d).
  5. Para 3.1 of the SGC Guideline.
  6. Para 4.2, SGC Guideline.
  7. Annex 1, SGC Guideline.
  8. Para 3(c) of Annex 1, SGC Guideline.
  9. Para 5.3 of the SGC Guideline. The court must give its reasons for departing from the Guideline (s.174(2)(a) CJA 2003).
  10. Para 5.4 of the SGC Guideline.
  11. Para 4.3(iii), SGC Guideline.
  12. Para 4.3(v). In R v Balfour Beatty Rail Infrastructure Ltd [2006] EWCA Crim 1586, the Court of Appeal upheld the trial judge’s decision not to give any discount in sentence where the defendant changed its plea to breaching section 3 HSWA to guilty, 93 days into the trial, following the dismissal of manslaughter charges; the court did not accept that the outstanding charges of manslaughter precluded the company from pleading guilty to the section 3 offence at the outset.
  13. R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249.
  14. CJA 2003, s.164(1).
  15. CJA 2003, s.162(1).
  16. R v ESB Hotels Ltd [2005] EWCA Crim 132.
  17. Inspectors should note that, in Howe, it is stated that, usually, “accounts need to be considered with some care to avoid reaching a superficial and perhaps erroneous conclusion … Where the relevant information is provided late it may be desirable for sentence to be adjourned, if necessary at the defendant’s expense, so as to avoid the risk of the court taking what it is told at face value and imposing an inadequate penalty” (Scott Baker, J). An adjournment will provide HSE, as well as the court, with the opportunity to examine the accounts carefully, and the prosecution should consider requesting an adjournment in appropriate cases for this reason..
  18. This principle was reiterated in the following cases: R v Rollco Screw & Rivet Co Ltd [1999] 2 Cr App R (S) 436,CA; R v Brintons Ltd, CA 22.6.99; R v Aceblade Ltd [2001] 1 Cr App R (S) 105, CA; and R v Colthrop Board Mills Ltd [2002] 2 Cr App R (S) 80, CA, in which Gibbs J said: “It appears from the authorities that financial penalties of up to around half a million pounds are appropriate for cases which result in the death even of a single employee, and perhaps of the serious injury of such a single employee. We would not wish the sum of £500,000 to appear to be set in stone or to provide any sort of maximum limit for such cases. On the contrary, we anticipate that as time goes on and the awareness of the importance of safety increases, that courts will uphold sums of that amount and even in excess of them in serious cases, whether or not they involve what could be described as major public disasters” (at para 27).
  19. R v Milford Haven Port Authority [2000] 2 Cr App R (S) 423, CA, endorsed in R v Balfour Beatty Rail Infrastructure Ltd [2006] EWCA Crim 1586 and R v Southampton University Hospital Trust [2006] EWCA Crim 2971. This is, however, just one factor to be considered; in the case of R v South West London and St George’s Mental Health NHS Trust (Central Criminal Court, 5 May 2005, unreported), His Honour Judge Gordon, whilst noting that any fine would come from public funds, stated: “On the other hand, not only must I mark society’s disapproval of avoidable failures that have led to a death, I must also do all that I can to see that such failures do not occur elsewhere. An insignificant fine would, therefore, in my view send out entirely the wrong message”.
  20. See Sentencing guideline for Corporate Manslaughter and Health and Safety offences causing death,
  21. See [Magistrates’ Court Sentencing Guidelines] pages 182-183 as amended with effect from 28/10/09.
  22. CJA 2003, s.152(2).
  23. CJA 2003, s.143(2).
  24. As to the use of previous convictions as evidence during a trial, see the guidance on ‘bad character’ in the section Witnesses giving evidence in court.
  25. As amended, from 10th March 2014, by Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 . From that date rehabilitation periods were amended – see the MoJ website. The changes are retrospective, which means that they apply to all convictions including those that occurred before the implementation of the changes..
  26. Magistrates’ Courts Act 1980, s.104, as amended by CJA 1991, sch.11.
  27. The practice of taking other offences into consideration is based upon convention and has no foundation in statute.
  28. R v McClean (1911) 6 Cr. App. R. 26
  29. R v Simons, R v Simons (1953) 37 Cr. App. R. 120
  30. Magistrates' Courts Act 1980, s.142(1).
  31. Powers of Criminal Courts (Sentencing) Act 2000, s.155(1). A sentence or other order imposed by the Crown Court may be varied or rescinded within 28 days of it having been made, provided the court is constituted in the same way as at the original hearing (s.155(1) and (4)).
Updated 2014-05-23