Cap on Magistrates' Courts sentencing powers lifted
In 2015, section 85 of LASPO came into force which has the effect of increasing the maximum level of fine to Magistrates’ Courts to an unlimited…
On 12 March 2015, section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force which has the effect of increasing the maximum level of fine to Magistrates’ Courts (previously £20,000 for most health and safety offences) to an unlimited amount. The increase will only apply (a) in respect of offences committed after 12 March 2015; and (b) to England and Wales but not to Northern Ireland or Scotland.
While at first glance the consequence of section 85 LASPO should mean that more cases can be dealt with by the Magistrates Court because their powers of sentence will be sufficient, Annex 3 of the Criminal Practice Direction has been amended to indicate the types of case in which must be dealt with by an authorised District Judge, rather than a lay panel. This includes:
- 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; and
- high profile cases or ones of an exceptionally sensitive nature.
In the event that a case falls into any of the above categories, the Prosecution is required to notify the court 7 days before the first hearing 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.
In addition, despite the Magistrates' Court having maximum fines available, there is a further discretion available to allocate a case to the Crown Court for sentence under section 3(2)(a) of the Powers of Criminal Courts (Sentencing) Act 2000. This section provides 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, then then Crown Court should deal with the case as though the person/corporate body has been convicted on indictment.
Any client who has been through this process before will recall that it is notoriously difficult to gauge whether Magistrates will accept jurisdiction (except in cases involving death or serious injury). These new provisions may therefore provide some clarity. However, even if it is apparent a matter should remain in the Magistrates as a result of these provisions, the level of fines will still remain difficult to predict with any certainty.
The Magistrates' Court Sentencing Guidelines (February 2014) will still apply, which provide the following 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'. While the new provisions do provide more guidance on what might be termed a 'large company', it will be smaller companies that will continue to suffer as a result of the uncertainty whilst it becomes clear how these provisions will actually be applied.
In addition, the new provisions will also increase potential inconsistency of fines as there is now no cap, or limit on the fines available, until such time a the new Sentencing Guidelines are implemented (they remain under ongoing consultation). As such penalties are likely to vary greatly across England and Wales.
Serious consideration therefore 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 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.