A health and safety sentencing tool-kit

October 2, 2012

Ben Mills sets out a tool-kit for defence and prosecution lawyers that will establish the foundation for quality advocacy at health and safety sentencing hearings.

Dealing with sentencing in health and safety prosecution cases is a fairly specialised and particular exercise. Not only that, but the Tribunals adjudicating on such cases often have little or no experience of dealing with them. The best results will be achieved by those who have identified the primary authorities and are able to easily explain the principles and requirements set out within them.

The aim of this article is to identify the essential materials required, set out the fundamental principles that will need to be addressed and identify the essential steps that need to be taken in order to establish a proper foundation for quality advocacy at health and safety sentencing hearings. In effect, to provide a Sentencing Tool-kit.

The Sentencing Guidelines Council have published guidelines in respect of Corporate Manslaughter and Health and Safety Offences Causing Death. These relate to the sentencing of organisations where it is proved that the offence was a significant cause of death, not simply that death occurred. They are therefore essential reading in serious fatality cases. This article focuses on the more common health and safety cases which come before the courts.

Essential materials

The following documents should be obtained or prepared before any sentence hearing:

A copy of R. v. F. Howe & Son (Engineers) Limited [1999] 2 All E.R. 249;
A copy of R. v. Balfour Beatty Rail Infrastructure Services Ltd. [2007] 1 Cr.App.R.(S.) 65;
A completed Friskies Schedule (see below);
A written basis of plea;
Financial evidence regarding the defendant’s means (where appropriate);
A costs schedule – agreed if possible.

Basic principle

The cardinal principle is that that the standards of health and safety to be expected from smaller businesses had to be the same as that to be expected from larger ones (see R v Graham [2010] 2 Cr App R (S) 48).

The fundamental sentencing principles

R. v. Balfour Beatty Rail Infrastructure Services Ltd. [2007] 1 Cr.App.R.(S.) 65

Many of the primary sentencing principles established in the earlier authorities were summarised in the Balfour Beatty case. They are as follows.

Failures to fulfil the general duties [imposed by sections such as section 3 of the Health and Safety at Work Act 1974] are particularly serious – those sections are the foundations for protecting health and safety of the public.
How far short the defendant fell of the appropriate standard may be an important consideration.
The more foreseeable the risk, the more grave the offending is likely to be.
A breach with a view to profit is a serious aggravating feature.
The degree of the risk and the extent of the danger is an important factor; specifically whether it is an isolated failure or one that continued over a period.
Generally, where death occurs in consequence of the breach, that is an aggravating feature. Multiple deaths would be regarded as more serious than single deaths, though not standing in anything like an arithmetical relationship with them.
Historically, fines for such offences, certainly those imposed by magistrates, have been too low.
It is not possible to say that a fine should stand in any specific relationship to the turnover or net profit of the defendant. Each case must be dealt with according to its own circumstances.
The defendant’s resources and the effect of a fine on its business are important considerations. Any fine should reflect the means of the offender, and the court should consider the whole sum it is minded to order the defendant to pay, including any order for costs.
Above all, the objective of the fine imposed should be to achieve a safe environment for the public and bring that message home, not only to those who manage a corporate defendant, but also to those who own it as shareholders.

Mitigation

Mitigation will include:

a prompt admission of responsibility and a timely plea of guilty;
that the defendant brought the breach to the attention of the authorities;
cooperation with the investigation;
steps taken to remedy any deficiencies drawn to a defendant’s attention;
a good safety record;
generally having a proper and effective safety regime in place.

That list is not an exhaustive list but covers the most common areas of mitigation.

Means of the Offender

If submissions are going to be made regarding either:

(a) the inability of the defendant to pay a significant financial penalty, and/or

(b) the detrimental effect such a penalty would have on the company,

it is essential that cogent financial evidence is provided well in advance of any sentencing hearing. This is likely to consist of, primarily, the company’s accounts.

In the case of Howe, Scott Baker J. stated the following (at 254j-255c):

If a defendant company wishes to make any submission to the court about its ability to pay a fine, it should supply copies of its accounts and any other financial information on which it intends to rely in good time before the hearing both to the court and to the prosecution.
Where accounts or other financial information are deliberately not supplied the court will be entitled to conclude that the company is in a position to pay any financial penalty it is minded to impose.
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.

As regards arriving at the appropriate financial penalty, in Rollco Screw it was stated that the proper approach was to ask the following two questions:

First: what financial penalty does the offence merit?
Secondly: what financial penalty can a defendant (whether corporate or personal) reasonably be ordered to meet?

That second question inevitably raises the question of time to pay.

Submissions on penalty should therefore focus on these two questions.

Friskies Schedule

In the case of R. v Friskies Petcare (U.K.) Ltd [2000] 2 Cr. App. R.(S.) 401, the Court recommended that a written schedule should be prepared in advance of all health and safety sentencing cases setting out the following matters:

The prosecution should identify the primary aggravating features that exist in the case and set out briefly the basis for those assertions.
That document should be served on the court and upon the defence.
If the defendants pleaded guilty, they should submit a similar document outlining the mitigating factors.

So far as is possible, a final amalgamated schedule should be agreed between the parties. That schedule is referred to as the Friskies Schedule.

In practice the prosecuting authority generally send this document to the defence for additions and agreement at an early stage of proceedings and a single document is provided to the sentencing court. Generally speaking the more input you have into this document the better. Therefore, if a guilty plea is likely to be forthcoming, consider preparing it yourself at an early stage in the proceedings.

Costs

As regards costs, Scott Baker J. stated in Howe at 44:

The power to award costs is contained in s.18(1) of the Prosecution of Offences Act 1985 and permits an order that the defendant pay to the prosecutor such costs as are just and reasonable.
This includes the cost of the prosecuting authority carrying out investigations with a view to prosecution: see R. v. Associated Octel Ltd. [1997] 1 Cr.App.R.(S.) 435.
Sometimes costs awarded have been scaled down so as not to exceed the fine. We can see no reason in principle for doing so.
Where a defendant is in a position to pay the whole of the prosecution costs in addition to the fine, there is no reason in principle for the court not to make an order accordingly.
The decision remains, of course, in the court’s discretion in the terms of the statute. The court must look at the whole sum (fine and costs) that it is minded to order the defendant to pay and consider the impact upon him.

Ben Mills is a barrister at St Philips. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. Ben was assisted in the preparation of this article by Tom Cleary of Frisby’s Solicitors.