Unlimited fines in the Magistrates’ Court

There have been some recent changes in the sentencing arrangements for Health and Safety Offences. The current position is that for offences committed on and after the 12th March 2015 the maximum penalty in the magistrates’ court is an unlimited fine or imprisonment for a term not exceeding six months or both. In the Crown Court, the maximum penalty is an unlimited fine or imprisonment not exceeding two years or both. The cap has now also been removed in respect of fines for environmental offences and food safety offences. The new legislation came into effect on 12 March 2015 providing for all maximum fines in the Magistrates’ Court of £5,000 or more to become unlimited in England and Wales. The legislation is contained in section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Unlimited fines in the Magistrates’ Court could have serious consequences for businesses

The unlimited fine will, of course, have serious consequences for businesses. Previously it may have been seen to be advantageous to keep a case in the Magistrates’ court for hearing, due to the cap on fines rather than elect a Crown Court hearing, it is now more likely than before that an organisation may choose to have their hearing in the Crown Court in order for any sentence to be assessed by a judge, rather than a lay magistrate.

What effect is there on the situation where an organisation wants to plead guilty at the earliest opportunity, to from maximum credit for an early guilty plea? It may be that the norm, going forward, will be for cases to be dealt with in the Magistrates’ Court, which could, from a tactical point of view be risky. It is possible that we may even see companies entering a not guilty plea in order to elect for trial in the Crown Court and then change to a not guilty plea at the first opportunity. This would, of course, have implications, given that some credit would be lost for not pleading guilty at the earliest opportunity, but this may be considered a small price to pay for being sentenced by a judge.

Limitations on unlimited fines in the Magistrates’ Court

At first glance, the consequence of S85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 should mean that more cases can be dealt with by the Magistrates Court because their powers of sentence will be sufficient. It should be noted that Annex 3 of the Criminal Practice Direction has been amended to indicate the types of cases that must be dealt with by an authorised District Judge, rather than a lay panel. These 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 prosecution 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.

The Criminal Practice Direction has being amended by the Criminal Practice Direction (Amendments Number 2) 2014, so that for offences committed after 12 March 2015, only a district judge “authorised”  by the Lord Chief Justice can deal with any allocation decision, trial and sentencing hearing in certain types of cases. This includes cases involving death or significant life-changing injuries – or a high risk of the same; cases where the corporate defendant has a turnover in excess of £10m but does not exceed £250m and has acted in a deliberate, reckless or negligent manner; any cases where the defendant has a turnover in excess of £250m (regardless of the harm or level of culpability); and high profile or exceptionally sensitive cases.