18/05/2017
The new Definitive Guideline Reduction in Sentence for a Guilty Plea comes into force for all cases where the first hearing takes place on or after 1 June 2017, regardless of when the alleged offence was committed.
The guideline can be downloaded at https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-plea-Definitive-Guide_FINAL_WEB.pdf.
The guidelines set out the reduction in sentence to be applied which depends upon when the guilty plea was entered. The reduction in sentence will be one-third if the guilty plea is given at “the first stage in the proceedings”, sliding down to 10% if entered on the first day of trial.
The majority of health and safety offences are either way offences i.e. can be tried in the Magistrates’ Court or the Crown Court. For these cases, the first stage of the proceedings will be the first hearing, which takes place in the Magistrates’ Court.
Last year saw the introduction of another definitive guideline for sentencing health and safety offences entitled Corporate Manslaughter, Health and Safety and Food Safety Offences. According to a survey on behalf of IOSH, in 2016 nineteen companies received fines of a million pounds or more for health and safety breaches compared with three in 2015 and none in 2014 (see https://www.iosh.co.uk/News/Sentencing-Guidelines-report.aspx). Therefore the level of discount can have a significant impact on sentence.
But what happens if a company is not in a position to enter a plea at the first hearing or accepts guilt but cannot agree a basis of plea with HSE?
Further information, assistance or advice necessary before indicating plea
In the previous guidance on guilty pleas a third discount to sentence would be applied not if the guilty plea was entered at the first stage of the proceedings, but if it was entered at the “first reasonable opportunity”.
Health and safety cases often involve complex factual and technical information which usually requires expert evidence to be called. Therefore courts in the past have been prepared to accept that the first reasonable opportunity may not be the first hearing in the Magistrates’ Court but later in the proceedings.
The new guideline sets out an important exception to the guilty plea having to be entered at the first stage of proceedings. It states:
“Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.”
It goes on to say when considering whether this exception should apply, the court should distinguish between cases in which it is
“necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty”
and where the defendant is engaging in delaying tactics to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.
At first blush it would appear that health and safety cases will normally fit into this exception. But this exemption should be viewed with care.
In an unsuccessful appeal against sentence in a health and safety case, R v Kenneth Thelwall [2016] EWCA Crim 1755 the Court of Appeal observed
“It is, we regret to say, sometimes forgotten on all sides, particularly those who defend in [health and safety cases] that they are no different to other criminal cases. They must be approached on the basis they are no different.”
It is clear the new guideline is intended to encourage cases to be dealt with more quickly. This must be seen in the context of the reforms known as Transforming Summary Justice in the Magistrates’ Court and Better Case Management in the Crown Courts which aim to make every hearing count thus reducing or eliminating wasted hearings and wasted time. Consequently, the defendant is expected to indicate at an early stage his plea and to say what he believes are the real issues in the case.
In health and safety cases it is unlikely that there will be an immediate charging decision following a work-related incident. A company will usually have carried out an accident investigation and will have some idea of HSE’s views from the notification of contravention served under the Fee for Intervention (FFI) scheme and from the interview under caution or the invitation by HSE to provide submissions. Further, in fatal cases, there will have usually been an inquest.
Therefore to rely on this exemption the court is going to need to be persuaded of the particular circumstances that merit its application.
Newton Hearings
A Newton hearing is held where a defendant accepts his guilt, but there are issues that are required to be resolved by the Court to determine the level of guilt. The Guideline warns:
“In circumstances where an offender’s version of events is rejected at a Newton hearing……., the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction”.
The sentencing process requires the court to consider culpability, the level of risk and the potential harm involved. The findings on these issues can have a significant impact on the level of fine. Often it is not so much the factual evidence that is in dispute but the nature of the risk involved and how this should be best managed and controlled. This means that it is not always clear cut as to whether the company is guilty of the offences charged. In those circumstances it can be a finely balanced decision as to whether to plead guilty and face a Newton hearing (if the basis of plea cannot be agreed) or to contest the case at trial.
Conclusion
The sentencing guideline for health and safety cases has resulted not only in far greater fines but also, because of the sentencing process, the court being more likely to make adverse observations on the way the risk was managed and the company’s approach to health and safety which in turn can have a detrimental impact on corporate reputation. It is, therefore, vital that a company obtains specialist legal advice in the wake of an incident and that the necessary investigation and preparation is undertaken in the early stages to ensure that if a prosecution follows the company is well placed to make a decision upon whether to defend to trial or to compromise.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you have recently had a health and safety incident occur in your workplace and require legal advice, please phone us on 0207 993 6960.