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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bodycote Hip, R v [2010] EWCA Crim 802 (30 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/802.html Cite as: [2011] 1 Cr App Rep (S) 6, [2010] EWCA Crim 802, [2011] 1 Cr App R (S) 6 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WALKER
MR JUSTICE NICOL
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R E G I N A | ||
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BODYCOTE HIP |
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Mr M Harris appeared on behalf of the Crown
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"There are other decisions where the fines are much lower. The courts have, in reducing fines, taken into account the size and financial stability of the appellant. Mr Thorogood, who represents the respondent, submits that in the recent case of Chalcroft Construction Limited [2008] EWCA 770, the court appears to accept that £600,000 now represents the sort of figure for a fatality with the added ingredient of safety being sacrificed for profit. The court in Chalcroft did not expressly state that it had accepted that proposition. However, we have been referred by Mr Thorogood, to sentencing remarks made by the Recorder in that case. Based on those sentencing remarks and the court's dismissal of the appeal in that case, it would appear to us that there is some force in those submissions made by Mr Thorogood."
However, those remarks need to be seen in the context of what the court had said earlier in the same judgment. At paragraph 16 it said:
"It is now generally recognised that in cases of this sort there can be no set tariff. However, as this court said in R v (UK) Limited AGC Automotive [2007] EWCA Crim 3396, fines should not be wholly arbitrary and it is possible, looking at decided cases, to get a broad feel of a level of the fine."
In the next paragraph the court adopted what had been said in R v Balfour Beatty Rail Infrastructure Services Limited [2006] EWCA Crim 1586 (paragraph 22), where Lord Phillips CJ had summarised the principles. In this guideline judgment he said inter alia that in that paragraph:
"(10) 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. Later decisions have all drawn on and confirmed the usefulness of Howe as an authority and they have added the following further points of possible application to this case.
(11) The stated objective in Howe means that consistency of fines between one case and another and proportionality between the fine and the gravity of the offence may be difficult to achieve. Consistency may not, therefore, be a primary aim of sentencing in this area of law. R v Jarvis [2005] EWCA Crim 1409 paragraph 7."
"... where the 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."
Had the Sentencing Guidelines Council guideline applied, we consider that the result of this appeal would have been no different.
"(1) An order to pay costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed upon him, the defendant is able to pay and which it is reasonable to order the defendant to pay.
(2) Such an order should never exceed the sum which the prosecutor has actually and reasonably incurred.
(3) The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor...
(4) While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine.
(5) It is for the defendant facing a financial penalty by way of fine or an order to pay costs to a prosecutor to disclose to magistrates such data relevant to his financial position as will enable justices to assess what he can reasonably afford to pay."
"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 decisions remains, of course, in the court's discretion in 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."
The need to reflect on the ability of a defendant to pay the combined total of fine and costs was re-emphasised by Lord Phillips in the Balfour Beatty case at paragraph 22 subparagraph (8). Of course the combined total of fine and costs in this case was substantial. But absent any information as to the appellant's means, there was no evidence on which the Recorder could conclude that the impact of an order to pay that total amount on the appellant was such that the presumptive position should not apply. The Recorder's sentence was not wrong in principle because he did not spell this out in terms. In our judgment, he was entitled to require the appellant to pay both the fine and the costs in the amounts that he did.
"The defendant ought ordinarily (subject to means) to be ordered to pay the properly incurred costs of the prosecution."
Overall therefore this appeal is dismissed.