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Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 12 March. Kevin Bridges, Pinsent Masons, explains what this means.
“Most health and safety offences coming before the courts are triable either way, which means they can be dealt with either in the Magistrates or in the Crown Court. The now abolished cap on fines previously available in the Magistrates’ court has always weighed heavily in the minds of defendants 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.
“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.
“The purpose behind section 85 of LASPO is to further empower Magistrates when sentencing so that they may dispose of more cases, therefore freeing up the Crown court to deal with the most serious of cases triable on indictment only.
“In either way cases, the Defendant can opt to be disposed of in either court if they plead not-guilty and will often prefer to be tried by a jury in the Crown Court rather than by a bench of Magistrates. However, when they plead guilty they 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 on the level of fine that might be imposed will be of serious concern to many corporate defendants. 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. Whilst this may result in sacrificing some of its credit for an early guilty plea, it will ensure the case is sentenced by a Crown Court judge rather than by a bench of lay Magistrates.
“This deep seated concern by defendants generally comes from the perceived inexperience that many Magistrates have in sentencing corporate defendants for health and safety offences, especially the more complex ones. 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. 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 to 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 in to force later this year, fines are likely to rise significantly for all health and safety offences. Therefore, as a matter of overall case tactics defendants 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, 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”
Kevin Bridges is a partner for Pinsent Masons LLP