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Sentencing Issues

It is important to consider the way in which courts sentences those convicted of either manslaughter or health and safety offences.

Since most prosecutions concern health and safety offences, the focus here is on how sentencing takes place in relation to these offences.

There is a private members bill currently going through parliament concerned with levels of fines and imprisonment following conviction for health and safety offences, Click Here to read about this
Health and Safety Offences
This page discusses:
  • Venue of Proceedings: how it is decided whether a trial (if there has been a not guilty plea) or decisions about the sentencing
    (if there has been a guilty plea or conviction) should take place in the magistrates or Crown Court, and the importance of this decision.

  • Levels of Fine: how courts decide the level of fines that should be imposed upon companies or organisations convicted of health and safety offences;

  • Sentencing Reform

    The HSE has published a report on "Health and Safety Offences and Penalties

    • to download the whole report
Venue of Proceedings: Magistrates or Crown Court
Most health and Safety offences can be prosecuted and sentenced in either the Magistrates courts or the Crown Court.

Guilty Pleas: If the defendant pleads "guilty" in the magistrates court it is upto the magistrates to determine whether sentencing should take place either in their own court or in the Crown court.

This is an important decision. If sentencing takes place in the magistrates court, the magistrates can not impose a fine higher than:

  • £20,000 if the offence relates to a breach of the Health and Safety at Work Act 1974 itself or other similar Act of Parliament

  • £5,000 if the offence relates to a breach of a Regulation like the Management at Work Regulations 2001.
If however, the sentencing takes place in the Crown Court, there are no maximum fines.

The decision is for the magistrates. They have been given guidance by the Magistrates Association to assist them in deciding when it is appropriate to refer a case to the Crown Court for sentencing

Although the decision is one for the magistrate to make, the prosecutor representing the Health and Safety Executive or Local Authority in court, does have an important part to play in informing the decision made by the magistrate. They can make representations to the court that the case is serious enough to warrant sentencing in the Crown Court. The proposed Enforcement Policy Statement says at paragraph 35 that:
"in cases of sufficient seriousness, the enforcing authorities in England and Wales should consider indicating to the magistrates the offence is so serious that they may refer it to be heard or sentenced in the higher court where higher penalties can be imposed."
There is however no guidance to its inspectors on when "the offence is so serious" that the case should be referred to the Crown Court. [See CCA's view on this.]

Not-Guilty Pleas: If the Defendant pleads not guilty, he can choose that the trial takes place in the Crown Court. This gives the defendant an opportunity for a jury to hear the evidence and decide on the guilt. However, it also means that if found guilty, the court has the power to impose an unlimited fine.

If the defendant does not choose for a trial to take place in the magistrates court, it is possible for the prosecutor, representing the Health and Safety Executive or Local Authority in court, to make representations to the Magistrates that a trial be heard in the Crown Court .

Level of fine
The level of fine that is imposed is determined entirely by the magistrate (if the decision is being made in the Magistrates Court) of Judge (if the decision is being made in the Crown Court).

'Level of Fine' Guidelines: A recent Court of Appeal case of Howe sets out the factors that a sentencing court should take into account when considering the level of fine.
  • how far short of the appropriate standard required by law;
  • whether a death has taken place;
  • whether there was a deliberate breach of legislation with a view to profit;
  • the degree of risk and the extent of danger created by the offence;
  • whether the breach was isolated or continued over a period of time
  • the defendant's resources and the effect of the fine on the business
The ruling stated that particular aggravating factors are:
  • failure to heed warnings
  • deliberately profiting from failing to take the necessary health and safety steps, or specifically running a risk to save money
and that particular mitigating features are:
  • prompt admission of responsibility;
  • steps taken to remedy deficiencies after they are drawn to the defendants attention;
  • a good safety record
In addition the Judges made the following comments:
  • "Any fine should reflect not only the gravity of the offence but also the means of the offender."

  • "The objective of prosecutions for health and safety offences in the workplace 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 the the defendant company is a company not only to those who manage it but also to its shareholders."

  • Although in general "we accept that [the fine should not be so large enough to imperil the earnings of employees or create a risk of bankruptcy] there may be cases where the offences are so serious that the defendant ought not to be in business."

    To see the key extract from the Howe case

    To download the full judgment
In a further Court of Appeal case Rollco Screw and Rivet Co, the Lord Chief Justice gave his unqualified support for the principles set out in Howe.. He stated that:
"Those observations amount in our judgment to a very clear and correct statement of the principles which should guide the court in cases of this kind, and we give them our unqualified support."
This case also confirmed that the court can ask for a fine to be paid over a long period of time

To download the full judgment

Sentencing Procedure: Prior to sentencing, the court will hear a summary of the alleged conduct which formed the basis of the charge to which the defendant either pleaded guilty or was convicted. The prosecutor may also set out what the prosecutor considers to be the "aggravating" factors to the case.

The guilty defendant is then allowed to give what in the defendant's opinion are the "mitigating " factors.

In the case of Friskies Petcare (UK) Ltd, the Court of Appeal has recently recommended a procedure to encourage the Prosecutor and the Defendant to agree on what are the mitigating and aggravating factors in the case.

The court stated that:
"[W]e recommend, that in this type of case, when the Health and Safety Executive commence proceedings, it should list in writing for the assistance of the court not merely the facts of the case, but the aggravating features, as set out in the Howe case, which it says exist in the particular case. That document can be served upon the Court and upon the defendants for the latter to consider. If it be, as very frequently is the case, that the defendants plead guilty, the defendants themselves should submit a similar document in writing outlining the mitigating features that the court is to take into account. It may well be - and no doubt in many cases is - the case that by the time the matter comes to court there is agreement between the parties as to which are the relevant mitigating and aggravating features that the court should take into account. If the plea therefore is upon an agreed basis, that agreed basis should be put into writing so that there is no doubt whatever what is the proper basis upon which the court should pass sentence.
This case illustrates the disadvantage that occurs when that step is not taken. To illustrate it just in a very simple fashion: the question of whether this is a case of - using simple terms - putting profit before safety. Had this case been reduced to writing on the basis of plea, it is plain, in our view, that the lower court would not have come to the decision that it did on that particular point. So, if an agreed basis of plea can properly be put before the court in writing, that should be done; if there is a disagreement of substance then the judge presiding at the lower court can decide that the case may merit a Newton hearing so that, if a particular aggravating feature needs to be discussed it can be and all sides know what the issues are and the court can make its decision appropriately. So we strongly recommend that a procedure of that nature, which is not unknown in other types of criminal case, should routinely be adopted in Health and Safety Act prosecutions.

To Download this judgment
The prosecutor (representing the HSE or LA) will first summarise the substance of the

There is often some issues of contention between the prosecutor and the defendant what

There has been a recent case which recomends that when proceedings are commenced, it should list in writing for the assistance of the court not merely the facts of the case but also the "aggravating features" of the case

Section from CCA's Response to the Health and Safety Commission's proposed new Enforcement Policy Statement

6.1 In the section on "Encouraging Action by the Courts" the revised HSC statement states that:
"in cases of sufficient seriousness, the enforcing authorities in England and Wales should consider indicating to the magistrates the offence is so serious that they may refer it to be heard or sentenced in the higher court where higher penalties can be imposed."
6.2 In our view, this needs to be strengthened. It is important that the enforcing authorities are given some guidelines as to when they should press for a case to go the Crown court. Statistics that the Centre published in its evidence to the Select Committee on Environment, Transport and the Regions indicated that:
  • only a small percentage of cases involving death resulted in a company being sentenced in the Crown (rather than magistrates) court and;

  • a wide disparity between the numbers of cases referred to the Crown Court in different parts of the country.
It is likely that the situation is the same in relation to prosecutions involving major injuries.
6.3 There may be many reasons for the low number of referrals; but it is our view that one of the reasons is that HSE inspectors are given no guidance as to when they should press for appropriate cases to be referred to the Crown Court.
6.3 In our view the enforcing authorities should press for cases to be referred to the Crown Court in three different situations:
  • if the offence concerns a death or serious injury;

  • if the breach is particularly serious

  • if, taking into account the profits and turnover of a company, it is the view of the enforcing authorities that a magistrates courts will not have enough powers to impose a sentence with appropriate punitive and deterrent impact
6.4 The Statement should also state that the enforcing authorities should obtain information about the profits and turnover of a company over a three/five year period prior to the offence taking place.
6.5 The paragraph above should therefore be amended to state: "In cases involving:
  • a death or major injury; or
  • a company whose profits/turnover are considered by the enforcing authority to be so high that a magistrate court will not have enough powers to impose a sentence with appropriate punitive and deterrent impact; or
  • a serious breach of safety law
    the enforcing authority should indicate to the Magistrates that they should consider referring the case to be heard or sentenced in the higher court where higher penalties can be imposed."
6.6 The EA statement includes a paragraph which says that:
"Following conviction, the prosecutor shall inform the court of all previous relevant enforcement action."
Such a paragraph should be included in the HSC statement. It is crucial that the Courts are given a full enforcement history to assist them in sentencing a company. Although this is supposed to be common practice in the HSE, it does not always take place.

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Page last updated on June 9, 2003