Emma Evans

Since 12 March 2015, Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") gave Magistrates Courts the ability to sentence the majority of health and safety ("H&S") offences, akin to its Crown Court counterpart and impose unlimited fines. With the introduction of LASPO, it was envisaged we'd see a marked increase in the number cases disposed of within the Magistrates Court. However, this change, coupled with the introduction of the Sentencing Council Definitive Guideline ("the Guideline") which prescribes up to a £10million maximum penalty for pure H&S breaches, may have created some perception that the Magistrates Court would steer away from cases where significant fines would result (those vastly exceeding its previous £20,000 maximum) or when sentencing large (or very large) organisations.

However, some recent cases appear to confirm that we have certainly started to see a shift in the Courts' approach. Firstly, in one case, a company employee was tragically crushed when a milling machine he was moving, overturned. It is understood the Court heard how the Defendant had not ensured adequate training and experience for heavy lifting tasks, nor had the centre of gravity for the machine been properly assessed. The company pleaded guilty to two H&S offences. Historically, fatal accidents were often handled by the Crown Court and usually would attract a fine pre-Guideline of around £100,000. However, this company was fined one of the largest fines handed down by a Magistrates Court so far - £1m, and ordered to pay prosecution costs of £6311.

December 2016 also saw another company fined £166,660 for two breaches of Section 2 (1) of the Health and Safety at Work etc. Act 1974. You may conclude that the amount itself is not particularly remarkable, given the level of others we have seen. However, this related to an employee, who having emptied hot oil from deep fat fryers, carried it in an unsecured bucket up stairs, which spilled onto his feet. He suffered serious scalding injuries and other employees were put at risk from the spilled oil. 

It is understood that a number of failures were identified with insufficient risk assessment, not providing secure containers, insufficient PPE and an unsafe method of work. Not only were these failings relevant to the accident, but presumably used to support there having been continued breaches prior to 12 March 2015.

So what's the relevance?

The first offence, before 12 March 2015, resulted in the Court only imposing a fine of £13,300 under its old regime. The identical offence after 12 March 2015, attracted a fine of £153,360. Unlimited sentencing powers were available for both offences in the Crown Court, however, this showed readiness on the part of the Magistrates Court to 'step up' and deal with this case swiftly and demonstrates how the changes in sentencing can make a substantial difference to the level of fine.

Finally, the recent case involving Volvo Group UK Ltd provides support to the apparent sea of change. The group, whose last reported turnover was well over half a billion pounds, was fined £900,000 with immediate effect when a worker was seriously injured after a ladder fall. The investigation showed that the ladder was not fit for use, had not been inspected for some time prior to the accident, nor had the company trained its staff to select, inspect and use access equipment for work at height. The injured party survived, but suffered life changing injuries. It has been reported that the District Judge also dismissed an application from the defence for 28 days to pay the fine, (often a reasonable request from Defence Advocates to assist a Company make reasonable provision and arrangements) stating this was a criminal penalty, “not some inconvenient invoice.” Surely, a further demonstration that the Magistrates Court are very committed about sending a message about the gravity of such fines and not reluctant to exercise its new found authority.

To conclude, the Magistrates Court can longer be perceived as a "light touch" for H&S offences, as both Courts are now somewhat on a level playing field and we can expect to see more fines of such levels being passed down by the lower courts. However, as H&S cases can be heard in either Court, the Crown Court undoubtedly remains a sensible and necessary venue for certain cases, depending upon the seriousness of the breach and complexities in the case, which still needs to be carefully decided on a case-by-case basis.

Emma Evans, associate, Pinsent Masons LLP