Not pulling their punches : magistrates’ courts and unlimited fines for breach of Air Navigation Order provisions - DAC Beachcroft

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Not pulling their punches : magistrates’ courts and unlimited fines for breach of Air Navigation Order provisions

Published 26 August 2021

On 6 July 2021 a private individual was fined GBP175,000 on conviction by Brighton Magistrates’ Court of two aviation safety offences under the Air Navigation Order 2016 (ANO 2016). The prosecution advanced by the UK Civil Aviation Authority (CAA) was not of itself unusual.  However, the level of fine has caused somewhat of a stir. It has sounded a warning bell not simply to other general aviation pilots but to the wider civil aviation community: when it comes to setting fines on conviction of aviation safety offences, magistrates’ courts are not pulling their punches.    

The CAA as enforcer

The CAA wears two hats.  It is the UK’s civil aviation regulator and also its enforcement body.  In its latter guise it is tasked by the UK Department of Transport to investigate and where appropriate to prosecute for breaches of aviation safety.  An extensive list of such offences are detailed in the ANO.  Individuals and companies alike face potential CAA investigation for breaches of the legislation that the CAA is tasked with enforcing.  On conclusion of an investigation the CAA may decide to take no further action, to issue a caution or in the most serious of cases, to advance a criminal prosecution. The watchful gaze of the CAA as regards adherence to ANO air safety provisions extends most obviously to aircraft operations but concerns others involved in aerial activities, to include owners and operators of balloons to gliders and parascending parachutes to airships.  It is not just owners and operators but also pilots (commercial and private), passengers, cargo operators, air traffic service providers and aerodrome owners and operators whose adherence to ANO provisions is demanded.  

Punishment and deterrent

Prior to 13 March 2015, magistrates in England and Wales were limited, as regards the level of fine that they could impose to include on conviction of under ANO air safety offences.  The statutory maximum (Level 5 on the standard scale as contained in section 37(2) of the Criminal Justice Act 1982) was set at (just) GBP5,000. 13 March 2015 marked something of a watershed:  it saw the introduction for magistrates, and as regards the most serious Level 5 offences, of power to impose fines that are unlimited as to amount.  The change impacted  only on magistrates’ courts since the Crown Court was already (and remains) vested with power to impose fines that it considers appropriate.  

The introduction in 2015 of unlimited fines for cases tried summarily was part of a drive by the UK Government to ensure that financial penalties are both an effective punishment of offenders and a deterrent to others.  Removal of the upper limit introduced flexibility into the system and allowed the financial worth, whether of private individuals of corporates, to be taken into consideration when deciding on the level of a fine.  A second aim was to avoid unnecessary committal of cases upwards to the Crown Court for sentencing.  When unlimited fines were introduced in March 2015 Sir Mike Penning  MP (then Justice Minister) said: “Dangerous criminals will always belong in prison but it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate punishment with the severity they see fit. Criminals should be in no doubt that if they break the law they will face consequences and where a fine is the most appropriate sentence this could run into several thousands.”[1] 

Unlimited fines for the most serious ANO offences

Within the field of civil aviation, the most serious air safety offences are listed in Part 3 and Part 4 of Schedule 13 of the ANO.  These are offences that are punishable on summary conviction in England and Wales by a fine that is unlimited in amount.  These are also either way offences i.e. they may be referred upwards to the Crown Court.  The higher court has power not simply in terms of imposing fines but also to imprison offenders. The maximum prison term for Part 3 offences is two years and up to five years for Part 4 offences. 

ANO Schedule 13 Part 3 and 4 offences include those concerned with illegal or “grey” air charters – offering and/or operating aircraft for public transport without an Air Operator Certificate.  In the light of the Emiliano Sala air accident (the loss of a Piper PA-46 in the English Channel on 21 January 2019) the CAA is under a renewed mandate from the UK Government to pursue private owners and operators involved in such operations.  Part 3/4 offences also include drunkenness in aircraft (passengers and/or crew), failure to comply with regulations for the carriage of dangerous goods and  endangering the safety of an aircraft. 

The financial means of the offender

In England and Wales, anyone convicted of an offence on or after 1 December 2020, regardless of when they committed the offence, is sentenced under the Sentencing Code created by the Sentencing Act 2020.  In setting the level of fine the court takes into consideration both the seriousness of the offence concerned and have regard also to the assets and financial means of the offender.  There is an obligation on the part of those convicted to complete a statement of assets and it is an offence to make a false statement or knowingly to fail to disclose material facts.

The Harbottle conviction 

Mr Harbottle was prosecuted under Articles of the ANO, specifically Article 256(4)  pursuant to which a person must not knowingly make a false entry in a document required to be maintained under the ANO and under Article 136(1) whereby a person must not act as pilot of a UK-registered EASA aircraft without holding an appropriate licence.  He had previously held Certificates of Revalidation for MEP (Multi-Engine Piston) and IR (Instrument Rating) ratings for his pilot licence but these expired in 2014. He later forged Certificates of Revalidation for an MEP and an IR rating that he required for the seven flights he undertook, and then back dated them to 2016. Mr Harbottle was convicted of two charges of knowingly making false entries to his pilot's licence, and one charge of acting as a pilot without an appropriate licence on seven flights.

Both the ANO offences at issue in the Harbottle case, attract fines on summary conviction that are unlimited as to amount.  Brighton Magistrates’ Court imposed a fine (GBP175,000) and associated charges that together totalled £191,620.  The court fined Mr Harbottle £50,000 for each of the false entries, and a further £75,000 for acting as a pilot without an appropriate licence. He was also ordered to pay costs to the Civil Aviation Authority of £16,500 and to pay a £120 victim charge.  The seriousness of the offences speak for themselves.  One can only speculate that Mr Harbottle’s statement of assets spoke to significant personal financial means. 

Commenting on the Harbottle case, a spokesperson for the UK Civil Aviation Authority, said: “The Civil Aviation Authority's prosecution, the subsequent convictions and substantial fines show that the CAA and the Courts treat offending of this kind with the upmost severity.” [2]

Magistrates’ courts: flexing their muscles

Is the level of fine imposed in the Harbottle case an aberration?  It is true that it stands in stark contrast to fines levelled in other convictions for breach of ANO provisions.  In July 2017, a gentleman was convicted by Worcester Magistrates’ Court of operating an aircraft (albeit on a single flight) without holding a valid pilot’s licence.  When he operated a PA 28 light aircraft from Dublin to Shobdon Aerodrome, Herefordshire on 12 December 2016 both his medical certificate and UK issued private pilot’s licence had expired.  He was ordered to pay the rather modest sum of £1,212, to include a fine of just £600.[3]   

However, when we look at how magistrates courts have determined fines (that are unlimited in amount) outside the field ANO offences, we see that they are prepared fully to flex their powers in the setting of fines, when the circumstances so demand.  Convictions that most readily attract the attention of the press involve those of individuals in the public gaze.  In April 2018, on conviction on drink driving offences before Wimbledon Magistrates’ Court, a British TV personality (of significant personal wealth) received a 20 month driving ban and was ordered to pay a fine of GBP86,000.  The incident involved a collision with two other vehicles:  the seriousness of the offence as regards the potential for injury and/or loss of life was not lost on the court. 

Conclusion

So, when we dial forward to July 2021 and consider the Harbottle case, magistrates’ courts have shown that as regards breaches of the most serious aviation safety under the ANO they are prepared to flex their muscles.  They will do so to ensure that the level of fine imposed operates both as an adequate punishment of the offender concerned and an effective deterrent to others.  Where the ANO offence concerned permits of punishment by a fine that is unlimited as to amount, the message is clear: magistrates’ courts will not pull their punches.  

 

 

[1] https://www.gov.uk/government/news/unlimited-fines-for-serious-offences

 

[2] https://www.caa.co.uk/News/Pilot-fined-%C2%A3175,000-for-falsifying-licence-and-acting-as-a-pilot-without-an-appropriate-licence/

 

[3] https://www.caa.co.uk/News/News-files/Man-prosecuted-for-flying-without-a-licence/

Authors

Lorraine Wilson

Lorraine Wilson

London - Walbrook

+44 (0) 20 7894 6608

Elliot Black

Elliot Black

London - Walbrook

+44 (0) 207 894 6847

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