West Law Report

No guidelines in cartel plea-bargain sentences

Posted in Times Law Report by mrkooenglish on December 5, 2008

From The Times
November 27, 2008
No guidelines in cartel plea-bargain sentences

Court of Appeal, Criminal Division
Published November 27, 2008
Regina v Whittle
Regina v Allison
Regina v Brammar
Before Lady Justice Hallett, Mr Justice Foskett and Judge Morris, QC
Judgment November 14, 2008

Minimum sentences agreed by United Kingdom employees admitting cartel offences in a plea agreement with the United States authorities and substituted on appeal were not to be treated as guidelines.

The Court of Appeal, Criminal Division allowed sentence appeals by Peter Whittle and Bryan Allison, each imprisoned for three years, and David Brammar, sentenced to 30 months, by Judge Rivlin, QC, at Southwark Crown Court on June 10, 2008, following their guilty pleas to a cartel offence under section 188 of the Enterprise Act 2002.

Mr Adam Kane for Whittle; Mr Mark Ellison, QC, for Allison; Mr Alexander Cameron, QC and Mr Adrian Derbyshire for Brammar; Mr Mark Lucraft, QC, for the Office of Fair Trading.

LADY JUSTICE HALLETT said that neither the sentences imposed by the Court of Appeal, nor those imposed by the judge, were to be treated as guidelines.

A nonexhaustive list of relevant factors indicated by Proposed Criminalisation of Cartels in the UK (OFT 365, Nov 2001) by Sir Anthony Hammond, QC, and Mr Roy Penrose, included: The gravity and nature of the offence, the duration of the offence, the degree of culpability of the defendant in implementing the cartel agreement, whether the defendant’s conduct was contrary to guidelines laid down in his company compliance manual; Mitigating factors included cooperation by the defendant in respect of the inquiry, whether the defendant was compelled to participate in the cartel under duress, whether the offence was a first offence and any personal circumstances which the courts might regard as a factor suggesting leniency.

Although the Court of Appeal had been asked by defence counsel to offer general guidance on sentencing levels in such cases, they were not in a position to do so, because these were the first defendants to be convicted of offences under the 2002 Act and the court had little knowledge of where to place the case in the scale of seriousness for such offences.

Furthermore, the three defendants were bound by the terms of a plea agreement they had entered into with the US authorities, which included their agreement to plead guilty in the US and guilty to a cartel offence in the UK, if they were prosecuted here.

That involved their agreeing not to seek in the UK court a sentence of imprisonment less than than that provided for in the agreement: 2½ years for Whittle, 2 years for Allison and 20 months for Brammar. Those sentences were substituted.

Solicitors: Hallinan Blackburn Gitting & Nott; Peters & Peters; Peters & Peters; Solicitor, Office of Fair Trading.

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