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Corporate Crime Analysis: Distorted sentencing exercise

24 September 2018
Pensions
Did a judge stray into the facts of the count on which no evidence had been offered and venture outside the indictment period? Simon Belfield, Director of Regulatory, Compliance and Investigations looks at a case which serves as a reminder of the need for care when tendering and accepting a basis of plea.

This article was originally written for Lexis Nexis, 25/04/2018 

R (on the application of Health and Safety Executive ) v ATE Truck & Trailer Sales Ltd [2018] EWCA Crim 752, [2018] All ER (D) 47 (Apr)

What are the practical implications of this case?

In reducing the level of fine from £475,000 to £200,000, the Court of Appeal undertook an analysis exercise of the Sentencing Guidelines constrained by a very narrow basis of plea. In so doing, it
noted that the Crown Court judge sentenced ATE on facts that were outside the basis of plea, and also where there was agreement from both experienced prosecution and defence counsel.

The case highlights the need for practitioners to be very careful when tendering and agreeing a basis of plea. It also highlights the need for judges to be very clear upon the basis they are sentencing the defendant when looking at the Sentencing Guidelines, albeit they should not be ‘straightjacketed’ by the guidelines. Practitioners should be wary that agreed basis of pleas are not binding on the court, although sensible agreement is to be encouraged between parties in this area and can be ‘expected to be weighed carefully by any court before departing from it’.

The case gives further prominence to the features highlighted in R (upon the prosecution of HM Inspectors of Health and Safety) v Whirlpool UK Appliances Ltd [2017] EWCA Crim 2186, [2017] All
ER (D) 124 (Dec) and R v Thames Water Utilities [2015] EWCA Crim 960, [2015] All ER (D) 31 (Jun), namely the need to move up a harm category and towards the top of the range of that
category when considering a case where the breach has ‘caused’ the death (Step 1—harm 2(ii)) and reflecting the need for a real economic impact to bring home the appropriate message to the
defendant (steps 3 and 4).

What was the background?

ATE pleaded guilty to failing to provide a suitable and sufficient risk assessment as required by regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, SI 1999/3242. No evidence was offered to a further and wider charge under section 3(1) of the Health and Safety at Work Act 1974 (HSWA 1974).

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