Sentencing


Community punishment orders - conspiracy - curfew orders - suspended sentences - theft - undue leniency

Attorney-General's references (numbers 59 and 60 of 2007) sub nom R v (1) Darren Michael Perry (2) Alan Shrimpton: CA (Crim Div) (Lord Chief Justice Phillips, Mr Justice Elias, Mr Justice Griffith Williams): 10 July 2007

The Attorney-General referred as unduly lenient sentences of 12 months' imprisonment, suspended for two years, imposed on the defendants (P and S) following their convictions for conspiracy to steal a motor vehicle from Luxembourg contrary to section 1(a) of the Criminal Law Act 1977. P, S and two co-defendants had conspired to steal a valuable concrete-pumping lorry from a yard in Luxembourg and take it to Ireland. One of the co-defendants was stopped, searched and arrested at a ferry port. He was found in possession of various tools and items including false number plates and vehicle registration documents. Following his arrest, the others were also arrested. P was to have been involved in the physical act of stealing the vehicle in Luxembourg while S provided paperwork including the registration number and chassis serial number. In addition to their suspended sentences, P and S both received community punishments. P was made the subject of curfew requirements for six months. S was made the subject of a supervision requirement for 18 months and ordered to attend a 30-day basic skills course. The Attorney-General submitted that the sentences imposed failed adequately to reflect the gravity of the offence in light of the significant degree of organisation and planning, the facts that the conspiracy was a sophisticated operation with an international dimension and that there must have been a breach of trust by an individual abroad to provide the chassis and serial number of the vehicle to be stolen, and, in the case of S, his previous conviction for a similar offence.



Held, it was important to bear in mind that the courts should not impose a sentence of imprisonment unless the offence or combination of offences was so serious that only a custodial sentence would suffice, R v Seed (Trigger Alan) [2007] EWCA Crim 254, Times, February 16, 2007 considered. The judge had been in the best position to assess the evidence at trial and had adopted the recommendations of both pre-sentence reports. Further, where there was uncertainty as to whether imprisonment was appropriate, prison overcrowding was a factor that could be taken into account, Seed considered. The Criminal Justice Act 2003 had created a range of sentencing options designed to enable judges to impose community sentences in appropriate circumstances. Therefore, the question for the court was not whether or not the court would have imposed a different sentence but whether or not the judge had gone beyond his boundaries. The old requirement that suspended sentences could only be imposed where there were exceptional circumstances no longer existed. The sentence imposed on P had been lenient, but not unduly so, and he had no previous convictions. A curfew order was not a weak punishment because it severely inhibited a person's liberty on a daily basis. Accordingly, the judge had been entitled to follow the recommendation in P's pre-sentence report. However, it was clear that the judge had been reluctant to distinguish between the roles of P and S and had erred in failing to do so. S was in a very different situation from P since he had a previous conviction for a very similar offence that could not be ignored when considering the appropriate sentence. Therefore, there had been no justification for a suspended sentence in relation to S and a sentence of 18 months' imprisonment was substituted.



Reference allowed in part.



R Whittam for the Attorney-General; CW Jackson for the defendant Perry; B Smith for the defendant Shrimpton.





Employment



Consultation - dismissal - redundancy - trade union recognition - voluntary redundancies - resignation or consensual termination of employment

Optare Group Ltd v Transport & General Workers Union: Employment Appeal Tribunal (Mr Justice Wilkie, Dr Corby, Mr Manners): 10 July 2007
The appellant employer (O) appealed against a decision that in proposing to dismiss as redundant 20 employees, it had failed to comply with section 188 of the requirements of the Trade Union and Labour Relations (Consolidation) Act 1992.



O had advised the respondent union that it was proposing to announce about 30 redundancies across two of its sites. The minutes of that meeting had recorded that no more than 19 redundancies would be made. A truncated process of consultation had been undertaken in accordance with informal procedure agreements between O and the union, as a result of which O had asked for volunteers to be made redundant. Three employees were accepted for voluntary redundancy and a further 17 employees were told that they would be made compulsorily redundant. The union had therefore informed O that as 20 employees were being dismissed, rather than 19 as minuted, the statutory obligation to consult was triggered.



O had responded that the three volunteers were excluded from the calculation, so that the statutory obligation to consult did not apply.



The employment tribunal had declared that the three volunteers were to be included within the number of employees dismissed by way of redundancy and had made an award protecting the remuneration of the redundant employees for 30 days.



O submitted that the tribunal ought not to have had regard to a policy consideration, namely that if there was no 'dismissal' of those volunteering for redundancy, future attempts to mitigate the impact of redundancy would be prejudiced because people would not volunteer for fear of losing an entitlement to statutory redundancy pay; that as there had been no risk or pressure on the employees volunteering for redundancy, the tribunal had erred in law in concluding that they had been dismissed.



Held, although it might have been better for the tribunal to have limited itself to statutory function, the policy statement had not been part of the tribunal's process of reasoning but, rather, had been an expression of satisfaction that the view to which it had come was consonant with what it saw as the desirability of doing nothing, which might deter others in future from volunteering to be made redundant.



A resignation or a consensual termination of employment could amount to a dismissal and, in concluding that the volunteers had volunteered to be 'dismissed', the tribunal had not erred in law.



The tribunal had to address the question of causation and consider the context in which the resignations had occurred, the nature of the scheme of which the resignation was part, and the documentation which reflected what the parties believed they were doing, Burton Allton & Johnson Ltd v Peck [1975] ICR 193 and University of Liverpool v Humber and Birch [1985] ICR 470 applied. In the present case, the three employees had not volunteered prior to the redundancy selection exercise, but had volunteered because they had been invited to do so. It was not necessary to investigate their individual motives for volunteering. The tribunal had correctly analysed the situation.



Appeal dismissed.



H Gower (instructed by EEF Yorkshire & Humberside) for the appellant; Mark Sutton (instructed by Morrish & Co) for the respondent.





Insurance



Causation - duty of care - films - brokers - insurance claims - loss - reinsurance

HIH Casualty & General Insurance Ltd v JLT Risk Solutions Ltd (formerly Lloyd Thompson Ltd): CA (Civ Div) (Lords Justice Auld, May, Longmore): 12 July 2007
The appellant insurer (H) appealed against a decision ([2006] EWHC 485 (Comm), [2006] 1 CLC 499) that although the respondent insurance broker (J) was under a duty post-placement to alert H, as reinsured, to matters of potential concern on coverage, H had failed to prove that its loss was caused by J's breach of duty, and J cross-appealed the judge's findings on duty and breach and part of his findings on causation.



H had 'fronted' for reinsurers in providing a form of guarantee to investors against the risk of failure of film investments under what were known as pecuniary loss indemnity policies.



The schemes in question involved the provision of finance by investors via a trust company (L) for the production of three 'slates' of films identified as H1, H2 and H3, supported by insurance and back-to-back reinsurance against the risk of the films not generating sufficient revenue to repay the finance. J had placed the insurance and reinsurance. In the case of each slate, fewer films were produced than originally intended and the returns fell substantially short of the projected revenues. H paid the claims of investors and sought to recover from the reinsurers. It was held that the reduction in the number of films made was a breach of warranty so that H's claims against the reinsurers failed. H then brought proceedings against J in which it was held that J owed H, as the reinsured, a continuing post-placement duty to alert it to coverage issues arising from the making of fewer films, that J was in breach of that duty, but that H failed on causation because it had not shown that the reinsurers would have agreed to the reduction in any of the slates in a manner which would have resulted in their being legally bound to indemnify H if H paid the investors' claims.



J submitted that the judge had been wrong to find that J owed a duty to H, post-placement, to alert it to the potential risk to the insurance and reinsurance coverage arising out of the reductions in the number of films making up the slates; that J was not in breach of the duty found by the judge which had, in any event, been discharged by the provision to H of risk-management reports indicating the reduction in the number of films being made; that on causation, the judge had been wrong to find that H did not appreciate the film reductions raised potential issues as to the coverage on the insurance and reinsurance, and to find that, if J had alerted H to such potential issues, H would have instructed J to ascertain the views of the reinsurers.



H submitted that the judge had erred in finding that if H had been alerted to the coverage issue and had raised it with reinsurers, the latter would not have agreed to change the terms of the covers or to waive any rights there might be in respect of the number of films.



Held, the fact that J had placed the insurance and reinsurance largely back-to-back did not remove the scope for identifying a duty of care on behalf of J to alert H, as reinsured, to potential problems to the reinsurance risk as the film slate investments began to go bad. On the contrary, it underlined the need to consider such a duty. The fact that J, if it were to alert both L and H to the problem, might find itself in a conflict of interest, did not necessarily exclude such a duty by J to H. If L had raised a coverage issue with J, J would have had a duty to L as insured and to H as reinsured, Youell v Bland Welch & Co Ltd (No2) [1990] 2 Lloyd's Rep 431, North & South Trust Co v Berkeley [1971] 1 WLR 470 and General Accident Fire & Life Assurance Corp Ltd v Tanter (The Zephyr) [1984] 1 WLR 100 considered. The judge had been entitled to find that there was a post-placement duty on J to H which involved more than acting as a 'post box' and that, in the circumstances, J ought to have sought instructions, or at least ensured that H was sufficiently aware of the potential concern to assess what, if any, instructions to give.



The judge's view on the evidence that J had been in breach of duty was tenable and should not be disturbed.



The judge had been entitled to conclude that, without some further alert from J, H was not alive to the potential risk to cover from the film reductions and that H, if alerted to the potential risk, would have wished to take the views of the reinsurers.



H had paid L's claims when it had no legal liability to do so and when, in the case of H1, it had not ascertained the view of the reinsurers and, in the cases of H2 and H3, it knew that the reinsurers, correctly as it later turned out, disputed the validity of the claims. On that basis, the judge had been entitled to find that H had not proved that its claimed loss was caused by J's breach of duty.



Appeal dismissed, cross-appeal dismissed.



Julian Flaux QC, Simon Picken QC (instructed by Holman Fenwick & Willan) for the appellant; Tom Weitzman QC, Jonathan Davies-Jones, Adam Kramer (instructed by Eversheds) for the respondent.