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RISK MANAGEMENT


In terms of offences that previously had very high maxima, such as oil pollution, it seems inevitable that the Courts will see the removal of the maximum sentences as carte blanche to impose very high penalties in the future given the emphasis now prevailing relating to the protection of the environment and the almost universal acceptance of the ‘polluter pays’ principle.


SECOND CONSEQUENCE


A second consequence is that where a defendant was aware that the maximum liability they would face would be a £5,000 fine, they may be tempted to plead guilty, as it was more commercially sensible for them to do so than incur the likely costs of a trial. This was especially the case where the likely fine could be determined by reference to the maximum penalty set for the particular offence. Now, however, it is probable that more defendants will take their chances before the Courts and plead not guilty resulting in more trials and a heavier workload for the Courts.


On the other hand, it could be argued that it was against the public interest for businesses and other commercial organisations to plead guilty or commit crimes on the basis that it was cheaper to pay the fines than comply with the legislation in the first place. Therefore the potential of higher penalties will cause them to be more law abiding in the future.


FURTHER INTRODUCTION The second of the changes introduced by LASPO came into force on 13 April. Now, the Court must impose an additional charge on a convicted defendant for costs incurred by the Court itself. Defendants


FINANCIAL PENALTY DECISION When deciding upon the financial penalty to be imposed upon a defendant, the Court must always look at the aggravating and mitigating features of the offence as well as the individual defendant’s ability to pay any financial penalty imposed. In many health and safety and Merchant Shipping Act cases the prosecution will not be the Crown Prosecution Service but an authority such as the Health and Safety Executive or the Maritime and Coastguard Agency which will generally seek to recover their legal fees. They may not now make a costs recovery, meaning that the outstanding costs will be picked up by the public purse.


convicted by a Magistrates' Court for a summary offence (i.e. a case that can only be dealt with in a Magistrates' Court) on a guilty plea will be charged £150, whilst those convicted following a trial will incur a £520 charge.


Those convicted in a Magistrates' Court for an either way offence (a case that could be dealt with in either the Magistrates' Court or the Crown Court) will face a charge of £1,000 following a trial in the Magistrates' Court, whilst in the Crown Court a conviction on a guilty plea will be charged £900; those convicted at trial will have to pay £1,200.


RECOVERING OUTSTANDING FINES It also remains to be seen how the imposition of a mandatory penalty affects the Courts' ability to recover outstanding fines. It would seem that the removal of the maximum penalty in the Magistrates' Court coupled with the mandatory imposition of Court fees will simply increase the number of unpaid fines, resulting in the Magistrates' Court's administration becoming bogged down in fines recovery actions – time that the Magistrates could spend in dealing with substantive cases.


CRITICISM


Whilst the aims of these legislative changes seem noble there has been widespread criticism of the total lack of consultation with the Courts and the legal profession. Perhaps this reflects the fact that the current Lord Chancellor is the first such appointee in a long time who is not a qualified lawyer.


Andrew Oliver Andrew Jackson Solicitors Click to view more info


www.windenergynetwork.co.uk


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