Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) comes into force on 12 March 2015. Section 85(1) has the effect of increasing the maximum level of fine available to Magistrates' Courts to an unlimited fine (currently £20,000 for most health and safety offences). Under section 152(1) these changes apply to England and Wales but not to Northern Ireland or Scotland. The increase has no retrospective effect so will only apply in respect of offences committed after 12 March 2015.
However, when the provision does apply it is likely that more cases shall be dealt with by the Magistrates Court because their powers of sentence will be sufficient. The Criminal Practice Direction XIII Annex 3 (page 49) has been amended to indicate the types of case in which, despite the unlimited fine being available, must be dealt with by an authorised District Judge. The types of case include:
- Cases involving death or significant, life changing injury or a high risk of death or significant, life‐changing injury
- Cases where the defendant corporation has a turnover in excess of £10 million but does not exceed £250 million, and has acted in a deliberate, reckless or negligent manner
- Cases where the defendant corporation has a turnover in excess of £250 million
- Cases where the court will be expected to analyse complex company accounts
- High profile cases or ones of an exceptionally sensitive nature
The Prosecution must notify the court 7 days before the first hearing if the case falls into one of the types of case set out above so that a District Judge can be allocated. Where a District Judge is not appointed at the first hearing the court must adjourn the case. This provision only applies when the offence has been committed after 12 March 2015. However, some courts may in practice begin to treat all such cases as requiring a District Judge.
Despite the Magistrates' Court having maximum fines available, section 3 of the Powers of Criminal Courts [Sentence] Act 2000 can be invoked in order to allocate a case to the Crown Court for sentence. Section 3(2)(a) sets out that where the court is of the opinion the offence or combination of offences make it so serious that a greater punishment should be inflicted, the Crown Court should deal with it as though the person has been convicted on indictment.
Clients should be aware of this change. Whilst it is always notoriously difficult to gauge whether Magistrates will accept jurisdiction, these new provisions may, arguably, provide some clarity. However the corollary is that even if it is apparent a matter should remain in the Magistrates as a result of these provisions, the level of fines is likely to be notoriously difficult to predict.
It is our view that these changes make little difference to the more serious prosecutions involving death or serious injury. The Magistrates' Court Sentencing Guidelines (February 2014) provide guidance to the Bench: 'Particular care needs to be taken when considering whether to accept jurisdiction or to commit a case to the Crown Court, especially when the defendant is a large company'.
The new provisions provide more guidance on what might be termed a 'large company'. As previously, it will be smaller companies that will suffer as a result of the uncertainty whilst it becomes clear how these provisions will actually be applied.
It will also increase potential inconsistency of fines as there is now no cap, or limit and penalties are likely to vary greatly across England and Wales. We are all too aware that uncertainty of this nature can create real difficulties for clients in their business planning, particularly if a matter takes a long time to get to Court.
Serious consideration will need to be given to decisions by clients as to whether it is in their best interest to indicate guilty pleas in the magistrates court and hence run the risk of being sentenced there, or whether consideration should be given to electing for a trial in the Crown Court and then indicating guilty pleas at the earliest opportunity following committal to the Crown Court jurisdiction.
The potential impact of the increased powers given to magistrates courts will be all the greater if, as we anticipate, the proposals contained in the recently concluded Sentencing Council Consultation (which will lead to significantly higher penalties being imposed) are implemented.