Health And Safety Executive, R (On the Application Of) v ATE Truck & Trailer Sales Ltd (Rev 1)

A sentencing judge may properly consider an agreed basis of plea, but it cannot bind the court. Sentencing remains a judicial function. The sentence must nevertheless be based on the admitted offence and the relevant indictment period.

Under the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline, an accident-free period does not by itself establish a low likelihood of harm. The assessment depends on all the circumstances. Where an offence has a more than trivial causal connection with a death, the death is a significant aggravating factor and may justify moving to the top of the next harm-category range.

ATE Truck & Trailer Sales Ltd pleaded guilty at Wolverhampton Crown Court to failing to make a suitable and sufficient risk assessment, contrary to Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999. Its failure concerned work carried out by its own employees dismantling trailers. A contractor, Mr Price, was killed while dismantling a trailer by a different method.

The prosecution and ATE agreed low culpability, level A harm, and a more than trivial but non-major causal connection between the admitted breach and the death. The judge departed from that agreement, found high culpability and high likelihood of harm, and imposed a fine of £475,000. ATE appealed against sentence, principally disputing the judge’s categorisation under the Guideline.

1. Appeal allowed. The court quashed the £475,000 fine and substituted a fine of £200,000. It reduced the victim surcharge from £120 to £15.
2. An agreement between prosecution and defence, including an agreed basis of plea, may assist the sentencing court and should be carefully weighed. It cannot determine sentence. Sentencing is constitutionally a judicial function: R v Innospec [2010] Crim LR 665.
3. The judge was entitled in principle to decline the parties’ agreement. However, he had wrongly assessed culpability and likelihood by focusing on the contractor’s unsafe working method and its frequency. The admitted offence concerned ATE’s risk assessment for its own employees. The judge also went beyond the indictment period.
4. The absence of a written risk assessment was a substantive failure, not merely one of form. Nonetheless, there was no sufficient basis for a high-culpability finding. Low culpability was appropriate. The seriousness of harm was level A, since death was risked. The likelihood was medium, not high or low. An accident-free period did not itself establish a low likelihood: see R v Diamond Box Ltd [2017] EWCA Crim 1904.
5. Factor 2(i) of the Guideline did not apply, as the relevant work did not expose a number of workers or members of the public to risk. Factor 2(ii) did apply. The admitted causal connection with Mr Price’s death was more than minimal, negligible or trivial. Death was a significant aggravating factor and justified moving from harm category 2 to the top of the medium-organisation range for harm category 1, consistently with Whirlpool UK Appliances Ltd v R [2017] EWCA Crim 2186.
6. The resulting pre-plea fine was £300,000. Further mitigation had already been reflected in the categorisation. A one-third reduction for the guilty plea produced the substituted fine of £200,000.

• Court of Appeal (Criminal Division) — Allowed ATE’s appeal against sentence, quashed the fine of £475,000 and substituted a fine of £200,000: [2018] EWCA Crim 752.
• Wolverhampton Crown Court — On 16 May 2017, imposed a fine of £475,000 following ATE’s guilty plea to an offence under Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999.