On 12 March 2015 subsections (1), (2) and (4) of section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were brought into force. This means that Magistrates’ Courts are no longer restricted to specified upper limits when deciding what fine to impose upon conviction (s.85(1)). Newly created offences are also empowered to specify that upon summary conviction a fine of an unlimited amount can be imposed (s.85(2)).
Section 85(4) makes it clear that this power will relate solely to sentences for those aged 18 or over and will not be retrospective. Furthermore, the changes will not affect the Crown Court which is already vested with the power to impose whatever fine it deems appropriate, even when an either way offence is committed for sentencing.
What was the position before?
Prior to these provisions coming into force, Magistrates’ Courts were restricted to fines of no more than £5,000 (however expressed) or, exceptionally, a specified higher amount (for example £20,000 under sections 2 to 6 of the Health and Safety at Work Act 1974). This was particularly important for those convicted of summary only offences, such as common assault, as they could be sure of the limits upon the court’s financial sentencing powers, it being unable to commit to the Crown Court.
Why is the change happening?
The government believes that financial penalties can be an effective punishment so long as they are set at an appropriate level. By removing the upper limits, it argues that it will allow for ‘proportionate fines’ to be imposed, particularly on wealthy or corporate offenders. Practically speaking, the government also hopes it will avoid unnecessary allocation decisions or committals to the Crown Court for sentencing. This may well in turn generate greater revenue for the government and reduce expenditure by imposing financial penalties over custody or community orders.
How will this impact allocation decisions in cases brought before the Magistrates’ Court?
Allocation is the process by which a Magistrates’ Court decides where (Magistrates’ or Crown Court) an either way offence should be tried. As the Sentencing Council’s guidelines currently stand, Magistrates’ Courts are advised that “In general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient”. Whilst the Court will continue to commit where a lengthy custodial sentence is likely or other circumstances make the Crown Court a more suitable venue, the changes permit the Court to retain jurisdiction where previously they were bound, due to their restricted powers, to decline.
It should be noted however that by virtue of Criminal Practice Direction 2014, No.2, the remit of carrying out allocation decisions, trials and sentencing on specific types of cases, will be placed with an authorised District Judge. Such cases include those involving substantial environmental damage; a defendant corporation with turnover in excess of £250 million; and cases requiring analysis of complex company accounts.
What are the implications?
The changes must of course be borne carefully in mind when considering the possible outcomes of cases in the Magistrates’ Court, be it involving corporate offenders or drink drivers.
The change may, however, be welcomed as it enables more persuasive arguments to be mounted in favour of a Band D (alternative to a community order) or Band E (alternative to custody) fine because of the significant impression the court can now make in an individual’s monthly income. Beyond the obvious benefits of avoiding community or custodial sentences, a fine carries with it a significantly lesser period of rehabilitation (1 year) than these other penalties. Where disclosure of unspent convictions is thus in issue, a larger fine may well prove an attractive lesser of two evils.
How will the Magistrates’ Court approach this?
Sentencing guidelines have not to date been updated to reflect the changes. Consequently, unlike the Environmental Offences Definitive Guideline, Magistrates’ Courts will have no clear guidance on what level to set the fines, having to instead rely on their own judgment. This applies both to authorised District Judges dealing with the category of cases set out in the Practice Direction (see above) or lay magistrates sitting collectively as a bench. Of course, in some cases the change will be immaterial, with a convicted individual’s monthly income insufficient to warrant a fine in excess of £5,000 in any event. However that will not be the case for all. Courts will need to assess proportionality based on the facts of the offence and, now with greater scrutiny, the impact any conviction may have upon an individual’s financial circumstances. This may, for example, involve an individual being dismissed from their employment. Setting a fine too high without considering these factors will simply result in defaults, enforcement hearings and potential further offences. This is not what the government intends.