Health and Social Care Update - November 2018
Nov 20 2018
Policy and law relevant to those involved in health and social care work.Read More
New legislation has come into force granting magistrates powers to issue unlimited fines for health and safety offences in England and Wales. The legislation, contained in section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, came into effect on 12 March 2015, and provides that fines with previous upper limits of £5,000 or more are no longer capped, and will now be unlimited.
Previously, the fine options available to magistrates were capped depending on the nature of the offence committed. Fine levels were set on a "standard scale" of 1-5 (5 being the most serious) ranging from a cap of £200 (level 1) to a cap of £5,000 (level 5). As yet, the maximum fine levels on the standard scale of 1-4, will remain capped; however, there is provision for the amounts to be increased in the future.
There were, of course, already some offences which fell outside of the standard scale (including health and safety, environmental and food safety matters). In respect of health and safety offences (falling under the Health and Safety at Work Act 1974 and the Health and Safety (Offences) Act 2008), fines were capped at £20,000. This amount is now unlimited and will apply to offences committed on or after the 12 March 2015.
The cap has now also been removed in respect of fines for environmental and food safety offences (previously capped at between £5,000 and £50,000 for environmental offences and between £5,000 and £20,000 for food safety offences). As with health and safety offences, the fines will now also be unlimited.
The new legislation applies to both summary offences (can only be heard in the magistrates' court) and either way offences (can be heard in both the magistrates' court as well as the Crown Court) tried in the magistrates' court.
There are a number of reasons for the removal of the cap, firstly, it is perceived that fines act as a greater deterrent to offenders, and until now, magistrates have been curtailed when it came to sentencing. Going forward, magistrates will now be able to issue more proportionate fines. Whereby previously magistrates would commit a matter to the Crown Court where it was felt their sentencing powers were inadequate, now they will be able to adequately sentence the offender. This will, in theory, free up the Crown Court to deal with serious offenders and reduce delay and costs previously incurred as a result of the committal. It is also perceived that the court that has heard all of the evidence and facts of the case are in the best place to make a just decision in relation to sentencing.
The unlimited fine will of course have serious consequences for organisations. Whereas 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 (and on the basis that the matter stayed within the magistrates' court for sentencing) rather than elect a Crown Court hearing, it is now likely an organisation may now choose to elect to have their hearing in the Crown Court in order for any sentence to be assessed by a judge, rather than a lay magistrate.
But what about the situation where an organisation wants to plead guilty at the earliest opportunity in order to benefit from maximum credit for an early guilty plea? It appears inevitable 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 organisations entering a not guilty plea in order to elect trial to the Crown Court and then change plea at the first opportunity. This itself would 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.
Later this year new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences will come into effect (currently there are only sentencing guidelines for corporate manslaughter and health and safety offences causing death). It is anticipated that the guidelines will encourage magistrates to make use of the higher level of fines available to them (as demonstrated in the Environmental Sentencing Guidelines which came into effect July 2014), whereby magistrates are required to focus on annual turnover of an organisation in order to reach a starting point for the fine amount.
For the meantime, magistrates will have the ability to issue unlimited fines without any guidance in respect of health and safety offences, where no death has resulted. It is anticipated that the greater sentencing powers of the magistrates, combined with the new (anticipated) guidelines will lead to a much tougher stance from the courts, with much larger fines being handed down to organisations as a result.