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The Government has been given the power under the Legal Aid, Sentencing and Punishment of Offences Act 2012 (the “Act”) to remove or amend the caps on fines that Magistrates’ Court can impose criminal offences.

Although the Act received Royal Assent on 1 May 2012 these particular changes have not yet been commenced.

However, if and when the changes are brought into force they will apply across all business sectors and will affect a very wide range of legislation, including health and safety and environmental laws.  At present, the maximum fine for most health and safety offences where they are sentenced in the Magistrates’ Court is £20,000 and/or six months imprisonment where an individual has been convicted. For environmental offences, the maximum offence is £50,000 and/or 2 years imprisonment where an individual has been convicted.   The new position   When section 85(1) of Act comes into force any offence punishable on summary conviction, where the fine is currently capped at £5,000 or a higher amount, will instead face a fine of unlimited amount. This will not, however, have a retrospective affect.

Reason for the change  

The removal of the cap was not part of the bill when it was first laid before Parliament and there was very limited debate on these changes when the Bill was discussed in Parliament. However, on numerous occasions, the Government has stated that it wishes to encourage the greater use of fines in the Magistrates’ Court and to allow the Magistrates’ Court to deal with more cases without the need to commit for sentence cases where they consider that they do not have sufficient power available to them to impose a proportionate fine on wealthy or corporate offenders.

Affect on companies and individual company officers  

Over recent years there have been significant increases in the maximum penalties available in health and safety and environmental cases, for example the Health and Safety Offences Act 2008 raised the fines for many offences to £20,000. Similarly, legislation including the Environmental Permitting Regulations 2010 and Clean Neighbourhoods and Environment Act 2005 saw the maximum fines for cases of water pollution, environmental permitting and waste offences rise to a maximum of £50,000. These changes have already resulted in courts imposing larger fines in such cases, and it is anticipated that the already substantial fines imposed in such cases will rise further once there is no cap on the fines that can be imposed in the Magistrates’ Court.   Now that businesses face increased potential for higher fines from the lower courts, it is more important than ever that practices, policies and procedures comply with legislation. Whereas previously companies may have been persuaded to accept allegations of minor failures, they may now wish to contest such allegations, because minor breaches may soon result in unlimited fines.   It will be necessary to watch and wait as to when the Government enacts the appropriate commencement order to bring the section into force.

Source: Brabners Chaffe www.brabnerschaffestreet.com