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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
1999/2000
2000/2001
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.
|
REFERING
CASES TO THE CROWN COURT |
| 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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