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

Summary

As a matter of principle, agreements reached between parties are not binding on the court. However, sensible agreements between specialist prosecution agencies and defendants are encouraged to save resources and focus on remedial measures. Such agreements should be weighed carefully by the court before they are departed from.

In this case, the Court of Appeal found that the judge had not had sufficient justification to depart from the agreement between the parties.

The facts

ATE, a used truck and trailer specialist, had entered into an arrangement with a contractor. The contractor would occupy part of ATE's premises where they would remove the roof and sides of trailers to create flat-bedded trailers which ATE would then export. The contractor kept the remainder of the trailer and sold it for scrap. They paid ATE £50 per trailer instead of rent. The contractor used his own equipment and was not assisted by ATE staff.

ATE staff also undertook the removal of the roof and sides of trailers but such work was infrequent and the staff used a different method to the contractor.

On 21 February 2013, an ATE employee found the contractor under one of the roofs he had been dismantling. He had died, presumably when the roof had fallen onto him.

ATE genuinely did not believe it had responsibility for the contractor's activities. Further, ATE did not have a written risk assessment for the dismantling of the trailers when conducted by its own employees.

The plea

ATE pleaded guilty for failing to provide a suitable risk assessment for its employees as required by Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999.

However, in respect of the duty owed to non-employees under s3(1) of the Health and Safety at Work Act 1974, ATE pleaded not guilty and the HSE offered no evidence against ATE.

The agreement

Prior to the first instance hearing, the HSE and ATE came to an agreement in respect of the steps under the Sentencing Guidelines. It was agreed between the parties that:

• the case fell within the category of low culpability;
• the seriousness of harm risked fell into Level A; and
• as to causation, the offence was regarded as having more than a minimal, negligible or trivial connection with the accident leading to the contractor's death but was not a major cause.

The parties did not agree as to the likelihood of harm. ATE considered there to be a low likelihood and the HSE submitted there was a medium likelihood of harm.

ATE admitted that it should have had a risk assessment in relation to dismantling trailers for its own employees.

The first instance decision

The judge accepted ATE's breach in respect of its duty to its own employees. However, the judge did voice concerns about the complicated plea, specifically how ATE's breach related to non-employees.

The judge significantly departed from the agreement reached between the parties. It was decided that:

• the case fell within the category of high culpability because ATE had failed to put in place measures that were recognised industry standards, and had allowed the breach to continue over a long period of time;
• agreeing with the parties, the seriousness of harm risked fell into Level A because the harm risked was death; and
• disagreeing with both of the parties (even though the parties themselves had not agreed this point), the likelihood of harm was high.

The appeal decision

ATE submitted that the judge had departed from the agreement between the parties without adequate justification, and had made a number of factual errors.

The court agreed with the judge that the basis of the plea made the sentencing complicated but equally saw no practical benefit to decline to proceed on that basis. This meant it was necessary to concentrate on the method and frequency of the work undertaken by ATE's own employees, not the contractor's.

The court stated that whilst no agreement between the parties could bind the court, any decision of the court to depart from such an agreement had to be well-founded. The court then considered this.

Culpability

The judge had been wrong to conclude that the level of culpability had been high for the following reasons:

• the judge had considered the contractor's method of conducting the work as opposed to ATE's method, which is the method that formed the basis of the guilty plea;
• there were no recognised industry standards, except in respect of a written risk assessment, which ATE had already admitted they did not have for their employees; and
• the judge had stated that ATE allowed the breach to continue for a long time but had concluded this based on the contractor's work, not ATE's employees.

The court agreed with the parties that this was a case of low culpability because ATE's method of carrying out this work was safe (aside from the absence of a risk assessment) and was rarely undertaken by ATE's employees.

Harm

The court agreed with the parties and the judge that the seriousness of harm risked was Level A.

As to the likelihood of harm, the court agreed with the HSE that the likelihood was medium, meaning it disagreed with ATE that it was low and with the judge that it was high.

The court concluded that once again, the judge had been influenced by the contractor's work, as opposed to ATE's work which was the basis of the guilty plea.

Fine

As a result of the above, the court quashed the original fine of £475,000 imposed on ATE and replaced it with a fine of £200,000.

Comment

This case was made more complicated because of the causation element of the plea as a result of ATE only pleading guilty to a breach of duty in respect of its own employees, and no other evidence being presented by the HSE in respect of ATE's duty to non-employees.

Nevertheless, the court is keen to encourage cooperation and agreement between the HSE and defendants. Whilst no such agreement is binding on the court, weight will be given to common ground and any departures by the court from the agreed points must be justified.