RISK MANAGEMENT
RISK MANAGEMENT SYSTEMS AND LASPO
The Legal Aid, Sentencing and Punishment of Offenders Act 2012, often known in the press as ‘LASPO’, has received considerable attention as it has introduced a string of controversial changes to the legal system.
However, two further provisions of the Act have gone largely unnoticed, both of which will have a considerable effect on the way in which businesses deal with breaches of health and safety and other regulatory legislation – and in turn, risk management, risk assessments and also regulatory breaches when brought before the Courts. Having a risk management system is not enough and the authorities are increasingly more interested in the auditing and application of a safety system as opposed to its existence.
INITIAL CHANGES
The first set of changes took effect on 12 March this year when the limits on the level of fines that a Magistrates' Court could impose were removed, meaning these Courts now have the power to impose an unlimited fine upon a defendant. Previously, the Magistrates were generally limited to applying what was known as the statutory maximum fine which was set at £5,000.
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Certain specific offences, notably in relation to health and safety matters and certain Merchant Shipping Act matters, permitted the Magistrates to impose greater sentences. For example, some environmental offences had maximum sentences of £50,000, topping out at a maximum fine of £250,000 for a breach of Section 131 of the Merchant Shipping Act relating to oil pollution.
RAMIFICATIONS
This has a number of ramifications for Health and Safety and Merchant Shipping Act offences. First, in terms of sentencing procedure, where previously there was a maximum penalty in place this made it possible to use that as a yard stick by which the Magistrates could judge the severity of an offence.
For example, a premeditated, planned and organised breach of the regulations might attract a ‘top end’ penalty whereas an innocent breach of a regulation, with no intent or premeditation and low culpability, would indicate a penalty towards the bottom end of the scale. However, with no maximum penalty it is difficult for Magistrates to gauge where on the scale of offending a particular offence may lie, which means that fines are likely to increase.
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