Whittle & Ors, R. v

Sentences imposed in an exceptional first prosecution for a cartel offence do not establish guideline levels where foreign plea agreements materially restrict the submissions that may be made on appeal. The ordinary maximum sentence remains reserved for the most serious offences of the relevant kind, but the court may be unable to determine the proper starting point on constrained submissions.

In sentencing for a cartel offence under the Enterprise Act 2002, relevant, non-exhaustive considerations include the gravity and duration of the conduct, the offender’s role in implementing or enforcing the cartel, compliance arrangements, co-operation, duress, previous good character and personal mitigation.

The applicants were the first individuals convicted of the cartel offence created by section 188 of the Enterprise Act 2002. At Southwark Crown Court they pleaded guilty to dishonestly agreeing to implement price-fixing and bid-rigging arrangements in the marine-hose market between June 2003 and May 2007.

They received imprisonment terms of three years, three years and 30 months respectively. Each had made admissions, co-operated with United States and United Kingdom authorities, and pleaded guilty at the first opportunity. Their United States plea agreements required them not to seek UK sentences below specified terms. The central issue was whether, despite that restriction, the sentences should be reduced.

1. The appeals were allowed. The court granted leave and substituted sentences of two and a half years’ imprisonment for Whittle, two years for Allison, and 20 months for Brammar.
2. The applicants’ overseas plea agreements had a material effect on the appeals. Each agreement provided that a United States custodial term would be reduced by the actual term imposed in the United Kingdom, and each applicant had agreed not to seek a UK term below an agreed minimum. Those constraints prevented counsel from advancing the full sentencing arguments that would ordinarily have been available.
3. The court had misgivings about resolving the appeals on that basis. It considered that, without the constraints, it might have been persuaded to reduce the sentences further. It could not, however, fairly assess the proper starting point or the full force of the submission that the statutory maximum should be reserved for the most serious cases of its kind. To avoid injustice, it substituted the terms which the applicants were permitted to seek.
4. The court declined to give guideline sentencing levels. The first-instance sentences and the substituted terms were not guideline sentences, because the appeal had been disposed of under exceptional constraints.
5. For future cases, the court noted that sentencing under section 188 of the Enterprise Act 2002 may properly take account of the offence’s gravity and duration, the offender’s role, compliance arrangements, and mitigation including co-operation, duress, first-offence status and personal circumstances. Those considerations were not exhaustive.

• Court of Appeal (Criminal Division): Allowed the sentence appeals and substituted reduced terms of imprisonment: [2008] EWCA Crim 2560.
• Southwark Crown Court: Following guilty pleas to a cartel offence, imposed terms of three years on Whittle and Allison and 30 months on Brammar. The director-disqualification periods were not challenged.