More health and safety offenders likely to appeal, says expert, as magistrates get power to issue unlimited fines

The changes will affect the disposal by the courts of many different kinds of regulatory offence, and are designed to free up the Crown Court to deal with only the most serious of cases, said health and safety expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com. However, as most health and safety offences can be tried in either court, the removal of the cap would effectively remove the incentive for corporate offenders in particular to have their cases heard before the magistrates, he said.

"The now-abolished cap on fines previously available in the magistrates' court has always weighed heavily in the minds of those charged with health and safety offences as summary disposal of the case placed a maximum upper limit of £20,000 on the fine that could be imposed, contrasted with the unlimited fines available if the case was sent to the Crown Court," he said. "When the decision had been taken to plead guilty in the magistrates' court, it was often the objective of the advocate to seek to persuade the bench that they had sufficient sentencing powers available to dispose of the case. This type of advocacy will become a thing of the past."

"Those found guilty of health and safety offences should now expect to be sentenced by the magistrates' court in all cases. In the absence of any limit on fines, the potential uncertainty this creates about the level of fine that might be imposed will be of serious concern to many corporate offenders. Tactically, they may prefer to indicate a not-guilty plea at this stage, elect for Crown Court trial and then consider changing their plea to guilty when it first comes before the Crown Court. While this may result in sacrificing some of the credit for an early guilty plea, it will ensure the case is sentenced by a Crown Court judge rather than a bench of lay magistrates," he said.

Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) removes existing limits on magistrate court fines of £5,000 or more, however that amount is expressed in the legislation governing that offence, on conviction by the magistrates' court. It also modifies powers to create offences which are punishable on summary conviction by a fine with a limit of £5,000 or more so that they are punishable by a fine of any amount. These provisions came into force on 12 March 2015, but will only affect fines issued for offences committed on or after that date.

The changes apply to all offences other than those explicitly listed in the legislation that are triable either in the magistrates' court, or 'either way', meaning that the offender can opt to be tried in either the magistrates' court or the Crown Court. They will affect a wide range of offences including those under corporate and commercial law, data protection and IP law, corruption and financial crime, financial services law and environmental offences, as well as health and safety cases.

Health and safety law expert Kevin Bridges said that corporate offenders in complex health and safety cases traditionally opted to have their cases heard by the Crown Court due to "the perceived inexperience that many magistrates have in sentencing" in these cases. Although new sentencing guidelines for health and safety and corporate manslaughter cases are due to come into force later this year, this would not necessarily alleviate all their concerns, he said.

"One of the reasons behind the recent consultation on proposed sentencing guidelines for these offences is to better equip magistrates to sentence such cases given their new unlimited sentencing powers," he said. "However, the draft guidelines are not necessarily easy to apply given the need firstly to determine the appropriate 'offence category' by reference to various harm and culpability factors and then go on to consider other mitigating and aggravating features to ultimately decide where in the appropriate range the fine should sit. The reality is that many cases sentenced by magistrates could well be appealed if this process is incorrectly followed, resulting in a disproportionate fine being imposed."

"When the sentencing guidelines come into force later this year, fines are likely to rise significantly for all health and safety offences. Therefore, as a matter of overall case tactics, defendant companies may be more inclined in appropriate cases to plead not guilty and opt for a trial by jury in the Crown Court in more cases than we see now, rather than plead guilty and then be at the mercy of the magistrates. However, there will of course be some cases where a guilty plea is the only sensible option open to the defendant company, in which case the skill of the advocate will be crucial in helping the magistrates to navigate the steps they must follow in implementing the sentencing guidelines," he said.