Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is now in force, removing the cap on magistrates’ sentencing powers in respect of Health & Safety and other offences.
Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is now in force, as of 12 March 2015, and applies to offences committed on or after that date. The effect of this section is to grant magistrates unlimited powers to fine in respect of any case where they currently have a power to levy a fine of £5,000 or more.
All Health & Safety offences and the majority of other regulatory offences (i.e. environmental, trading standards etc…) fall within this bracket. This raises the prospect of magistrates hearing cases with the power to impose unlimited fines, whereas previously they were constrained by a cap on their powers to fine.
Parliamentary debates and the Government’s own press releases around this issue have focused on the intended effect of ensuring proportionate fines for wealthy individuals who may not view a fine as a deterrent. Little consideration appears to have been applied to the effect this will have on organisations. One of the likely effects of the legislation is that more cases will remain in the Magistrates Court given they now have sufficient sentencing powers. However, given that the majority of large fines are paid by organisations, it is surprising that greater consideration has not been given to the disproportionate effect this may have on business.
The courts have partly addressed this issue by amending the Criminal Practice Direction to ensure that certain categories of case, such as those involving death will be dealt with by an authorised District Judge, but there are still areas of concern. For example, a company with less than a £250 million turnover, where the case does not involve death or serious injury and no issues of deliberate, reckless or negligent offending arise, could still be sentenced by lay magistrates.
By definition, Health & Safety (and other regulatory) offences involve consideration of the factual background to offending, this can be complex and technical. Sentencing also involves analysis of corporate accounts and a realistic assessment both of the impact of any offending and the potential effect a fine would have on the business. Lay magistrates do not have the training and legal expertise that a District Judge is equipped with, which could create inconsistent practises and uncertainty as different benches adopt different approaches.
This is likely to mean that, for corporate bodies, particularly those with a high turnover, the certainty previously offered by a conviction in the Magistrates Court has vanished. There may be less benefit to electing for this mode of trial if the result is deemed to be too uncertain. Equally, there is likely to be more argument about the application of the Practice Direction, particularly its provisions that consideration of complex company accounts is a District Judge issue, and whether this means that a District Judge should deal with the sentencing of larger corporate entities.
This change comes in the wake of sentencing decisions in the cases of Sellafield, Network Rail and Southern Water, in which a clear message was sent that large fines may be imposed on large organisations, even where offending does not cause serious harm or injury. The recent consultation on Health and Safety, Corporate Manslaughter, and Food Safety sentencing (see our response here) and the Environmental Sentencing Guidelines currently in force, both suggest significant increases in fines based on turnover.
The effects of this change are likely to include increases in fines for less serious offences, a more thorough analysis of financial data by Magistrates Courts, more deliberation when selecting trial venue, and significantly more Court time spent debating sentencing issues in lower level offending.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.