Until recently, there has been little legislative change to comment on. But as Kevin Bridges and Zöe Betts report, three have come along, dividing opinion.
The first legislative change concerns section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force on 12 March 2015 with the effect of abolishing the cap on fines for health and safety offences dealt with in the Magistrates’ Court.
Where previously there was a maximum of £20,000 available for ‘triable either way’ offences, Magistrates now have the same unlimited sentencing powers as if the case had been sent to the Crown Court.
The purpose behind s.85 is to empower the Magistrates when sentencing so that they may dispose of more cases, thereby freeing up the Crown Court to focus on the most serious cases (which are ‘triable on indictment’ only).
Nervousness arises, however, over the perceived inexperience that many Magistrates (including District Judges) have in sentencing corporate defendants for regulatory offences. While draft sentencing guidelines designed to assist Magistrates in this exercise are expected to come into force early next year, they are not easy to apply in factually, and financially, complicated cases. While the most serious and complex of cases are still likely to be referred to the Crown Court, corporate defendants should be prepared, as Magistrates may sentence many more cases than was previously the case.
This all suggests that an increasing number of defendants, for purely tactical reasons, may plead not guilty, elect for trial by jury in the Crown Court and subsequently change plea in order to be sentenced by a judge. While this may sacrifice partial credit for an early guilty plea, some defendants may view that as a price worth paying. Only time will tell but tactics and case strategy from a legal perspective are almost certainly set to change.
The second legislative change concerns the criminal courts charge which came into force on 13 April 2015.. It was introduced by the Criminal Justice and Courts Act 2015 and implemented by the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015.
Defendants that plead guilty or are convicted after trial will be ordered to pay this charge on top of their legal fees, prosecution costs, fine and victim surcharge. The amount varies depending on whether the plea is entered at the earliest opportunity or after trial. In the Magistrates’ Court, summary offences on a plea incur £150, and £520 after trial, while either way offences give rise to £180 and £1,000 charges respectively. In the Crown Court, the charge is £900 on a plea and £1,200 after trial. Dismissed appeals in the Crown Court incur £150 and in the Court of Appeal, £200.
The charge is mandatory and the seriousness of the offence, previous good character, reasons behind the prosecution and means of the defendant are all irrelevant. This additional financial burden on defendants convicted of regulatory offences does not sit comfortably with companies that, in October 2012, lost their automatic right to recover their legal costs if acquitted, by way of a defence costs order.
If the position is that those convicted of offences should pay towards the costs involved in bringing them to justice, then justice and fairness would suggest that those wrongly prosecuted should be entitled to recover their costs in defending themselves following an acquittal, a right lost by the vast majority of defendants in 2012. While the various charges to be imposed are not substantial for many large corporate defendants, the fact there is to be an additional layer of charges is something else they should be made aware of. For individuals, small and medium sized businesses, the additional charges will have a proportionally greater impact.
The final change concerns the Deregulation Act 2015, which is one of the government’s last pre-election efforts to cut yet more ‘red tape’. Section 1 of the Deregulation Act amends section 3 of the Health and Safety at Work etc. Act 1974 (HSWA) by limiting the scope of the general duty, so that only self-employed persons who conduct an “undertaking of a prescribed description” have an obligation to ensure that, so far as is reasonably practicable, they themselves and other persons who may be affected thereby are not exposed to risks to their health and safety.
The draft regulations proposed – the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations – cover certain specific areas such as agriculture, forestry, construction, design, health and social care, and asbestos, but are yet to be finalised.
In the last reading of the Bill on 4 March 2015, a last minute amendment saw the insertion of section (2A) into the HSWA. The new subsection sets out the ways in which undertakings may be described in regulations made under section 3(2) (as amended). The amendment was intended to do two things – first of all, to address concerns that the original proposal to amend the HSWA would lead to some self-employed who pose a risk to health and safety being exempt; and second, to enable the government to make regulations which imposed s.3(2) duties on all self-employed people who conduct specified high hazard work activities, as well as those who may expose others to risks to their health and safety.
Lord Freud, Minister for Welfare Reform, has stated that the passage of this legislation is the “final piece in the jigsaw… in reinstating common sense and trust in the health and safety system in Britain”. On the flip side, others fear that the need to determine what are, or are not, prescribed activities will cause confusion and are unnecessary under current law.
Kevin Bridges is partner Zöe Betts is senior associate of Pinsent Masons LLP
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