Removing the shackles

A significant shift has occurred in sentencing of health and safety offences and other summary and either way offences in England and Wales. In many cases, magistrates now have unlimited powers to fine organisations and individuals and can accept jurisdiction
for prosecutions that would previously have been sent to
the Crown Court.

On 11 March 2015 the justice secretary exercised powers conferred by section 85 of
the Legal Aid Sentencing and Punishing Offenders Act (LASPO) removing many of the limitations imposed on magistrates’ sentencing powers. LASPO now applies to offences committed
on or after 12 March 2015. While some offences are specifically excluded, cases which come before magistrates on a regular basis fall within the new rules, including road traffic offences and offences dealing with breaches of health and safety and environmental law.

Either way offences

Most health and safety
offences are either way offences. Previously, magistrates could
only accept jurisdiction of prosecutions brought under the Health and Safety at Work Act and its associated regulations where fines for individual offences would not exceed £20,000. Serious breaches of health and safety regulations involving death, serious injury, or significant risk to the public
were in nearly all cases sent to
the Crown Court for trial and sentence. This will continue in many instances, but it is clear that magistrates with the power to impose unlimited fines will now retain matters that previously would have had to go to the Crown Court. Indictable only offences including corporate manslaughter will continue to
go to Crown Court after a first appearance before magistrates.

New sentencing guidelines
for health and safety and food safety offences, which will assist magistrates, are likely to be released this autumn. The Sentencing Council for England and Wales produced draft guidelines last year which have been subject to consultation and will remain largely as drafted. They aim to address what was considered to be a lack of clear guidance on non-fatal health and safety offences and offences committed by individuals.

The guidelines will apply to both magistrates’ and Crown Courts and will assist the courts when considering difficult issues such as exposure to risk and
the degree of harm associated with offences, factors that will
be taken into account in the sentencing process, and will identify the appropriate levels
of fines for organisations committing those offences, including charities and public bodies. Turnover is to be
used as a measure of the size
and financial health of an organisation, another key factor in reaching an appropriate sentence, although the guidelines make clear that
other financial information should be taken into account.

Unfamiliar terminology

While the most serious health and safety offences, including those involving fatalities and serious injuries, will likely continue to be sent to the Crown Court, magistrates will have powers to impose significant fines using the new guidelines. The Sentencing Council accepts the guidelines contain unfamiliar terminology concerning the meaning of risk and harm and
will be subject to lengthy legal argument and legal challenge.

In some cases, the prosecution and defence are likely to produce expert evidence on the financial status of the company, which may lead to delays and more protracted and costly hearings. Prosecution and defence costs will become more substantial in the magistrates courts with the potential for a greater number
of appeals to the Crown Court. Those advising defendants involved in health and safety prosecutions may decide that
it is more cost effective in some cases, and less risky, to be sentenced in the Crown Court.

While it is uncertain what
the effects of the increased sentencing power and the new sentencing guidelines will be, legal advisers will find a greater challenge in advising clients on venue and the likely outcome following a conviction or guilty plea. Costs on both sides are likely to increase. SJ

Peter James is a health and safety partner at Plexus Law