Whilst the recent case of R v ATE Truck & Trailer Sales Limited provides a reminder to litigants that judges are not bound by parties’ agreed bases of plea, it also serves to point out that judges will not necessarily be correct to depart from them.

Facts of the case

The defendant allowed a scrap metal dealer, Mr Price, to occupy part of its site in Wolverhampton to dismantle old trucks and trailers. On 21 February 2013, the roof of the curtain-sided trailer that Mr Price was working on fell and struck him on the head causing fatal injuries. The investigation by the Health and Safety Executive (“HSE”) following the incident concluded that Mr Price’s method of work was unsafe. Although the defendant had various safety procedures and systems, employed health and safety consultants and maintained a significant number of risk assessments, there was no written health and safety risk assessment for dismantling curtain-sided trailers when carried out by the defendant’s own employees. However, the defendant considered that it had no responsibility for Mr Price’s activities. The defendant had made no effort to advise Mr Price of the method adopted by the defendant for carrying out the same activity. Mr Price had his own defined area for work within the defendant’s premises and the defendant had no expertise for the work that Mr Price carried out, as he had been undertaking this work for the defendant since the late 1990s.

Basis of plea

The defendant agreed a basis of plea with the HSE. The defendant contended that Mr Price had the primary expertise in the activity he was undertaking and was extremely unlikely to pay any attention to the defendant’s own risk assessment. Nevertheless, the defendant accepted that it was possible that Mr Price would have done so and adjusted his practices accordingly. Therefore, the defendant accepted, for the purposes of sentence, that the failure to have a recorded risk assessment in relation to its own activity for its own employees had a connection with the incident that led to Mr Price’s death. Accordingly, the defendant pleaded guilty to the offence of failing to make a suitable and sufficient assessment of the risks to the health and safety of its employees to which they are exposed whilst they are at work contrary to regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999. The period of indictment was 1 January 2010 until 23 February 2013.

It was further agreed between the defendant and the HSE, for the purposes of step one of the Sentencing Council’s Definitive Guideline for Health and Safety Offences (“the Guideline”), that:

• the case fell within the category of low culpability;

• the seriousness of the harm risked fell within Level A (i.e. the most serious type of harm, such as death or very serious injury); and

• the defendant’s offence had more than a minimal, negligible or trivial connection with the incident that led to Mr Price’s death, but was not a major cause.

The parties did not agree as to the likelihood of harm. The defendant contended that there was a low likelihood, whereas the HSE submitted that there was a medium likelihood. The HSE made no criticism of the dismantling method adopted by the defendant’s employees, other than the absence of a written risk assessment which, itself, created the risk that the method would not be followed correctly or taught properly. Whilst the defendant contended that the failing in respect of a written risk assessment was a matter of form only; the HSE disagreed.

The defendant pleaded not guilty to the offence of failing to discharge the duty to make a suitable and sufficient risk assessment to non-employees (for example, Mr Price) and the HSE offered no evidence on this charge, so a not guilty verdict was entered.

Sentencing

The sentencing judge disagreed with the basis of plea and assessed the level of culpability as being high. He considered that the defendant had failed to put in place recognised industry standards, such as a risk assessment and method statement. In addition, he stated that the defendant had failed to ensure that its own employees kept clear of Mr Price’s working area, and that the defendant had allowed the breach to subsist over a long period of time (before the period of indictment, from around 2002/3).

The sentencing judge also disagreed with the parties on the likelihood of harm; he considered that there was a high likelihood because the activity that Mr Price was engaged in was a high risk activity that he engaged in every day.

The sentencing judge then applied the rest of the Guideline. The defendant was dealt with as a medium organisation (its turnover being between £10m and £50m), having high culpability and within harm category 1. The starting point for the fine (taking into account proportionality and totality) was £625,000. However, paragraph 2 of the Guideline requires a court to then consider whether the offence exposed a number of workers or members of the public to the risk of harm, and/or whether the offence was “a significant cause of actual harm”. On the basis of paragraph 2 issues, the judge increased the level of fine to £750,000. Allowing for mitigating factors in favour of the defendant (for example, the absence of previous convictions, its co-operation with the authorities, its contrition and the steps that it had taken to improve health and safety) and a one-third reduction in the amount of fine in return for pleading guilty at the earliest opportunity, the final fine imposed by the judge was £475,000. The defendant appealed against the level of fine as being manifestly excessive.

Appeal

The Court of Appeal noted that, whilst sensible agreements between parties on the bases of plea are to be encouraged and weighed carefully by courts before departing from them, they do not bind courts and, as a matter of constitutional principle, the imposition of a sentence is a matter for the judiciary.  However, it went on to consider whether, on the facts, the judge was correct to depart from it in this case.

Culpability

The court noted that the sentencing judge’s consideration strayed into the methods used by Mr Price, which was an issue on which no evidence was offered. Secondly, the court considered that there were no recognised industry standards, apart from the expectation of a risk assessment, and underlined that there was no other criticism of the method followed by the defendant’s employees advanced by the HSE. Therefore, it was incorrect for the sentencing judge to consider the method used by Mr Price, as distinct from the defendant’s own employees. Finally, when referring to the breach having subsisted over a long period of time, the sentencing judge had gone outside of the indictment period and considered the work done by Mr Price, rather than the defendant’s employees. Therefore, the court held that the sentencing judge was wrong to categorise the case as one of high culpability.

Harm

Whilst the court agreed that the work undertaken was inherently hazardous, the only criticism made by the HSE of the method adopted by the defendant’s employees was the absence of a risk assessment. However, that factor alone pointed to the likelihood of harm being more than low. Furthermore, the mere absence of any incidents during the indictment period did not mean that that the likelihood of harm was low. Nevertheless, the court considered that the sentencing judge’s classification of the likelihood of harm as being high was based upon Mr Price’s method of work, rather than the defendant’s employees’ method. It agreed with the HSE that it should be classed as medium.

Paragraph 2 factors

Once more, the court considered that the sentencing judge focussed on the work carried out by Mr Price, rather than the work carried out by the defendant’s employees. Apart from this, the evidence did not show that Mr Price’s activity exposed a number of workers or members of the public to the risk of harm. Nevertheless, recalling the decision in R v Whirlpool UK Appliances Limited, the court noted that the fact that an incident has resulted in a death would justify the fine moving, not just into the next harm category, but also to the top of the next harm category.

Therefore, the court initially categorised the offence as being one by a medium organisation, having low culpability and within harm category 2. However, with the aggravating factor of a death, paragraph 2 of the Guideline meant that it should move up to the upper end of the scale for harm category 1 (i.e. £300,000). Allowing the one-third discount, the final fine would be £200,000.

Conclusion

Despite lowering the fine by more than 57%, the Court of Appeal agreed with the sentencing judge that there was an air of artificiality surrounding the agreed basis of plea in that the defendant had indirectly accepted guilt in respect of Mr Price via its breach of duty to its own employees. Perhaps, it is not surprising, therefore, that the sentencing judge repeatedly incorrectly focussed on Mr Price’s work methods, rather than those of the defendant’s employees.  In the Whirlpool case, the court ruled that courts should not lose sight of the fact that it is engaged in an exercise of judgement appropriately structured by the Guideline, but not straightjacketed by it. Similarly, this case illustrates that, whilst agreed bases of pleas may save time and money, courts should not lose sight of the fact that they are responsible for imposing just and proportionate sentences.