British Telecommunication PLC (BT) v Crown Court at Carlisle

Mrs Justice Hill: Introduction

1. By this claim filed on 2 September 2024 the Claimant, British Telecommunications Plc, seeks judicial review of a fine of £24,000 imposed on it by the Crown Court at Carlisle on 28 June 2024. The claim proceeds with permission granted by Mr Mark Ockelton, sitting as a Judge of the High Court, by an order sealed on 19 February 2025.

2. The Claimant advances four grounds of judicial review. Ground 1 asserts that the Defendant failed to give sufficient reasons for the level of the fine imposed, breached the statutory duties under the Sentencing Act 2020 (“the SA”) and thereby acted procedurally unfairly. Grounds 2-4 contend that the Defendant failed to take relevant factors into account, misdirected itself as to the correct approach for an appeal against sentence and acted in excess of excess of jurisdiction or error of law in imposing a fine at the level it did.

3. The Defendant filed an Acknowledgment of Service indicating that as a court or tribunal it did not intend to make any submissions.

4. The Interested Party is Cumberland Council (“the Council”) because the fine resulted from a prosecution of the Claimant by the Council for an offence of acting contrary to section 65 of the New Roads and Street Works Act 1991 (“ section 65 ”).

5. The Council did not file an Acknowledgment of Service but has indicated in correspondence an intention to remain neutral.

6. I have been greatly assisted by the written and oral submission from Andrew Walker KC and Richard Bottomley for the Claimant. Mr Bottomley appeared for the Claimant in the Crown Court. The factual background

7. On 21 August 2023 Battersby Construction and Groundwork (“BCG”) carried out works to repair an outage for a broadband cable connection on private land in a rural area, close to a public road, namely the Isel to Sunderland road, Cockermouth. The Claimant had sub-contracted the works to BCG via two further sub-contractors, Openreach and Morison Telecom Services.

8. On 22 August 2023 BCG discovered that the broken cable was in fact on the verge of the public road and obtained authorisation to complete the work. This authorisation was mistakenly given because the office staff thought the repairs required were on private land.

9. On 23 August 2023, the BCG team discovered that a section on the verge had not been restored fully and began remedial work.

10. Mr Mark Bailiff, Street Works Compliance Officer with the Council, was alerted to the works and attended the site. By the time he attended, the team had been working for only 1 hour and 10 minutes on that day. He found the site failed to meet the safety requirements as required by section 65 . He directed the BCG team to cease work, which they did immediately, and the site was made safe in accordance with his directions.

11. The criminal proceedings commenced by way of a summons dated 16 November 2023 which contained one charge of a breach of section 65 , specifically sections 65(1) (a) and (b), 65(3)(b) and 65(4) thereof. The summons read as follows: “On 23 August 2023, British Telecommunications Public Limited Company, as an undertaker executing Street works on the Isel to Sunderland Road, Cockermouth which were abstracted by plant or materials used or deposited in connection with the works failed to ensure that the works were adequately guarded and lit and failed to ensure that such traffic signs as were reasonably required and where necessary operated for the guidance or direction of persons using the street were placed, maintained and operated.”

12. On 8 December 2023 the first hearing in response to the summons took place at Workington Magistrates’ Court. The Claimant entered a guilty plea and was sentenced the same day to a fine of £50,000, the original fine of £75,000 having been reduced to reflect credit for the guilty plea. The Claimant was also ordered to pay the victim surcharge of £2,000 and costs of £986.46.

13. The Claimant appealed against the sentence to the Defendant Crown Court. The appeal was heard on 28 June 2024 before Mr Recorder Blakey sitting with Justices. The Claimant adduced evidence at that hearing in the form of a witness statement of Ms Sarah Adams, a solicitor employed by Openreach Ltd. This evidence provided details of all previous offences from 2022 for which the Claimant had been prosecuted for the same offence and the sentences imposed and of the sentences imposed in prosecutions of another company. Ms Adams’ evidence was not challenged by the Council.

14. The Claimant made both written and oral submissions through counsel. The Claimant’s submissions addressed culpability and harm factors, mitigating features, the court’s statutory duties with respect to sentencing and the need for consistency in sentencing.

15. Another appeal against sentence by Fibrus PLC was listed for hearing the same day. That company had been fined £200,000 (reduced from an original fine of £300,000 to reflect their guilty pleas) for two section 65 offences. The Defendant’s decision and reasons

16. The Defendant allowed the appeal and reduced the fine payable by the Claimant to £24,000.

17. In giving the decision of the court, the learned Recorder outlined the history of both appeals, cited The Recorder introduced the appeals by saying that both appellants were “appealing the fines handed down as manifestly excessive in the circumstances”. That was incorrect. Neither appellant had advanced their appeals on the basis, for the reasons given under Ground 3. T section 65 and referred to the date and locality of each offence. he remainder of the reasons given for the Defendant’s decision were, in material part, as follows: “It is incumbent on any individual or company to obey the local rules concerning work practices in their particular field to ensure the safety of pedestrians and road users. That has been acknowledged by both of these appellant companies. We accept that since these matters both companies have made significant changes and steps to avoid repetition and have set out planned actions... There are no guidelines in this type of case concerning sentence. We therefore have to determine, as best we can, consideration, firstly of the over-reaching principles on sentencing. We can also consider, but not a precedent, the fines imposed previously on the companies. We are not bound by them but we acknowledge them. Equally, it is appropriate to have an eye on the fact that sentencing in terms of fine prior to the 12th March 2015 was capped at £2,500. Doing the best we that we can, we have concluded that the fines were, in all the circumstances, manifestly excessive. Thus BT PLC, we reduce the £75,000 fine imposed by the Magistrates Court to one of £36,000 minus the third for credit which reduces it further to one of £24,000. As far as Fibrus is concerned, there will be £15,000 per offence. Less credit, that will be £10,000 per offence. That will be £20,000 in total in relation to the two offences. The distinction between the two companies is simply this, that we take the view that there was more of a risk in what BT PLC subcontractors didn’t do, that is that there was absolutely nothing put on the roads, as opposed to Fibrus. Although matters were, street furniture put onto the roads, it was inadequate, but that’s the only distinction between the two and that’s why there is that slight difference but that’s the order of the court, so the appeal has been successful in both”. Ground 1

18. The overarching submission advanced by the Claimant under Ground 1 is that the Defendant imposed a substantial fine without giving sufficient reasons, in breach of the Defendant’s statutory duties under the SA and common law principles, and thereby in a procedurally unfair way. The legal principles relevant to Ground 1 (i): The requirements of the SA

19. Under the SA, section 59(1)(a), every court must, in sentencing an offender, follow any sentencing guidelines – namely those guidelines issued by the Sentencing Council for England and Wales under section 120 of the Coroners and Justice Act 2009 as definitive guidelines – that are relevant to the offender’s case.

20. The Sentencing Council’s “General guideline: overarching principles” (“the Guideline”) was applicable here. It sets out a series of “steps” of which many were relevant to this case.

21. Step 1 requires the court to reach a provisional sentence. Where there is no offence-specific guideline, step 1(b) applies. This requires the court, where possible, to “follow the stepped approach of sentencing guidelines to arrive at the sentence”. The seriousness of the offence is assessed by considering the culpability of the offender and harm. This reflects section 63, which makes clear at section 63(b) that the assessment of harm includes any harm which the offence caused, was intended to cause or might foreseeably have caused. Step 1 provides detailed guidance on both culpability and harm.

22. Step 1(c) directs the court, when conducting the initial assessment of culpability and harm, to consider which of the five purposes of sentencing, as set out in the SA, section 57, the court is seeking to achieve through its sentence.

23. Step 2 requires the court to take aggravating and mitigating factors into account and decide whether these should result in any upward or downward adjustment from the sentence arrived at under step 1. In the case of a fine, the court should consider the guidance on fines set out within the Guideline and section 125 as well at this stage. Step 2 sets out a series of statutory and other aggravating factors and a series of factors that can reduce the seriousness or reflect personal mitigation.

24. Step 4 directs the court to apply the ‘Reduction in Sentence for a Guilty Plea’ guideline.

25. Step 9 requires the court to give reasons, as required by the SA, section 52. Section 52(1) places a court passing sentence on an offender under the duties in section 51(2) and (3). Section 52(2) requires the court to “state in open court, in ordinary language and in general terms, the court’s reasons for deciding the sentence”. Section 52(3) requires that the court “explain to the offender in ordinary language (a) the effect of the sentence…[and] (d) the effects of failure to pay a fine…”. Under section 52(6), the court must “identify any sentencing guidelines relevant to the offender’s case and (a) explain how the court discharged any duty imposed on it by section 59 or 60 ([the] duty to follow guidelines unless satisfied it would be in the interests of justice not to do so); (b) where the court was satisfied that it would be contrary to the interests of justice to follow the guidelines, to state why”.

26. Section 125(1) requires that the amount of any fine fixed by a court must be such as in the opinion of the court reflect the seriousness of the offence. Under section 125(2) fixing the amount of any fine to be imposed on an offender, whether an individual or other person, a court must take into account the circumstances of the case including in particular the financial circumstances of the offender so far as they are known or appear to the court. (ii): The common law requirement to give reasons and procedural fairness

27. The Court of Appeal confirmed in R v Chin-Charles [2019] EWCA Crim 1140 ; [2019] 1 WLR 5921 that the reasons given a sentencing exercise do not need to be, and ought not to be, extensive: [7]-[9]. However, as the Court explained: “10. The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was an issue, and also to explain why the court moved from the starting point.”

28. Sentencing remarks have to be sufficient to enable the Claimant to understand why the particular sentence was imposed, and to engage adequately with the “major planks” of the sentencing exercise: R v Saffa [2021] EWCA Crim 661 at [9].

29. Mr Walker KC submitted that where there are no offence-specific Sentencing Council guidelines that are applicable, as in this case, more explanation of the court’s reasoning may well be required, because the sentencing remarks will be made in a more open context. I accept that submission.

30. When the Crown Court is sitting in its appellate capacity, it is obliged to give sufficient reasons to demonstrate that it has identified the main issues in the case that it needed to decide and how it had resolved each of them. Where an appellant has called “apparently compelling” evidence, the reasons must enable the appellant to understand why this has been rejected: R v Harrow CC, ex p. Dave [1994] 1 WLR 98 , per the Divisional Court (Kennedy LJ and Pill J). Submissions and analysis

31. As I have explained, the Recorder began the decision of the court by noting that there were “no guidelines in this type of case concerning sentence” such that the court had to determine the outcome “as best we can” with consideration of the “over-reaching principles on sentencing”.

32. It is not clear what the Recorder meant by referring to there being “no guidelines”. If it was that there were no relevant Sentencing Council guidelines at all, that was incorrect, because the Guideline to which I have referred, and the Reduction in Sentence for a Guilty Plea guideline were relevant. It is perhaps more likely that he was referring to the lack of any offence-specific guideline for the section 65 offence.

33. It is also not clear what the Recorder meant by referring to the “over-reaching principles on sentencing”. This could have been a reference to any of the provisions of the SA, or the Guideline (which has “over arching principles” in its title).

34. This preliminary analysis illustrates that the Defendant’s overall approach to the appeal and sentencing exercise was far from clear. The Defendant has, in my judgment, fallen into overall error in failing to explain how it had discharged its section 59 duty to follow the Guideline, contrary to section 52(6) of the SA.

35. There were a series of further, more specific errors in the Defendant’s approach.

36. First , as I have said, under section 125 of the SA, the amount of any fine had to reflect the seriousness of the offence. Step 1(b) of the Guideline and section 63 required the Defendant to assess the seriousness of the offence by reference to both culpability and harm.

37. Counsel for the Claimant had referred the Defendant to both sections 63 and 125 and the Guideline, and made submissions about the application of both, including why some elements in the Guideline carried no weight in relation to this type of offence in the particular circumstances of the Claimant and the case. Those submissions were supported by the unchallenged written evidence of Ms Adams.

38. The Claimant had relied on the fact that the section 65 offence is one of strict liability. It lacks any element of intention, as mentioned in the Guideline. There is no defence of having taken all reasonable steps or similar. Only an “undertaker” as defined by the statute such as the Claimant can be prosecuted, not the person doing or immediately responsible for the works. Here the work was done by a sub-sub-contractor.

39. The Claimant had argued that following the suggested approach in the Guideline, none of the culpability factors was present. The Claimant should be treated as having no, or low, culpability.

40. As to harm, the Claimant had argued that there was no actual or intended harm: only a risk of harm, which is less serious, as explained in the Guideline. There was no more than “some risk of harm in the form of physical injury to passers-by”: see the Claimant’s written submissions to the Defendant at [41.2] and p.13 of the transcript. By broad comparison, in Ms Adams’ statement she explained that one of the other section 65 offences had been committed near a school and some of the offences involved a high risk of serious harm or indeed very serious harm which did not apply here.

41. The Council had assessed harm more seriously, arguing that there was a “medium risk of serious or very serious harm”. Their counsel referred to the fact that although it might have been unlikely for anyone to have travelled at 60 mph on the road on question, because of its narrow width, safety measures had to cater for “those who use such roads perhaps rather foolishly but still within the law”. The “poor and at times very poor visibility of the works in places”, the lack of warnings to alert drivers of the works and the possibility of the digger and the mole plough at times blocking most of the road meant that there was a “clear risk of vehicles colliding with the machinery of operatives”: see the Council’s written submissions to the Defendant at [18]-[19] and p.9 of the transcript

42. Despite these detailed submissions the Defendant did not engage adequately with the two key issues of culpability and harm.

43. The Defendant made a passing reference at the end of the remarks to the fact that the Claimant had put “absolutely nothing” on the road in terms of “street furniture”. This w as potentially a reference to risk. However, it was mentioned after the fine had been imposed as a point of comparison between the Claimant and Fibrus PLC rather than as part of any proper assessment of harm or indeed of culpability I pause to observe that such a comparison between the Claimant and Fibrus was inappropriate given the different nature of the offences the different defendants and the fact that no argument in relation to disparity had been advanced

44. Accordingly, the Claimant has no way of knowing how its culpability was assessed, and what level of harm was ascribed to the offending. The Defendant’s reasons gave no insight into how seriousness had been assessed for the purposes of section 63 or the Guideline. The Defendant failed to give sufficient reasons to explain that conclusions, as required by sections 52(2) and (6).

45. Second , under step 1(c) the court was required to consider which of the five purposes of sentencing, as set out in section 57 of the SA, the court was seeking to achieve through its sentence. The Defendant failed to do this; or to explain how the fine met, in a fair and proportionate way, any of these purposes.

46. Third , under step 2 the court should take aggravating and mitigating factors into account and decided whether these should result in any upward or downward adjustment from the sentence arrived at under step 1.

47. The Council had placed reliance on the Claimant’s previous convictions for similar offences in the preceding 12 months. Previous convictions are a statutory aggravating factor under the Guideline, albeit that regard must be had to the nature of the offence to which the conviction relates, its relevance to the current offence and the time that has elapsed since the conviction.

48. The Claimant had sought to contextualise its previous convictions through Ms Adams’ evidence. She had explained in her witness statement that the very small overall number of had prosecutions had to be seen in the context of the Claimant engaging in 317,137 and 261,153 permitted street works nationally in 2022 and 2023 respectively (and 2,486 just in Cumbria alone during 2022).

49. As to mitigation, the Claimant had argued that the section 65 offence occurred due to an accidental miscommunication, and against a background of a strong compliance record overall, underpinned by extensive systems and procedures. Reliance was placed on several other mitigating factors, including extensive action after the event.

50. However, beyond briefly noting the evidence of both companies making changes and taking steps to avoid repetition, the Defendant failed to engage with any of these potentially aggravating and mitigating features; and failed to address any of the submissions made on the Claimant’s behalf.

51. Fourth , the Claimant had referred to Ms Adams’ evidence indicating a general pattern of fines imposed in similar types of case since 2022 of £5,000-£10,000. She had provided more detail on three of the cases which related to the same area. The most serious of the three was assessed by the sentencing court as deliberate (level 1) and with a high risk of very serious harm (level 2). Each of the two offences in issue was punished by a fine of £5,000.

52. The Claimant was very conscious of the observations of the Court of Appeal in R v Sandhu [2017] EWCA Crim 908 at [19]-[20], counselling against the use of news reports of other cases as aids to sentencing. The Claimant was simply trying to assist the court by providing a general overview of the sort of fines imposed for section 65 offences, bearing in mind that prosecutions for section 65 offences are relatively unusual, in order to assist in ensuring the consistency of approach. I observe that unlike in Sandhu , in any event, the Claimant was relying on its own knowledge of prosecutions in which it had been involved, and documentation about other cases provided by the Council, rather than unverified news reports.

53. Despite expressly acknowledging the fines imposed in other cases and saying that it would consider them, the Defendant gave no explanation of how it had decided on a fine of £36,000 in the context of the level of fines in those other cases. Mr Walker KC accepted that there could be no objection to this if the fine had been broadly consistent with that level, but it was not: there was a stark and inexplicable contrast. This, as Mr Walker KC said, “cried out” for reasons and yet none were given.

54. The only respect in which the Defendant complied with the Guideline required was when it reduced by a third the fine of £36,000 that it would otherwise have imposed. That would have accorded with step 4 and was a correct application of the guilty plea guideline.

55. Overall, however, the court failed to give reasons sufficient to comply with its duties under section 52. The reasons given did not enable the Claimant to understand why the particular fine was imposed; nor did they engage adequately with any of the “major planks” of the sentencing exercise as required.

56. If the Defendant had concluded that this was a case in which it could not follow a stepped approach, as might be implied from the phrase “Doing the best we can”, then it failed to say so in terms and failed to explain why, in breach of section 52(6)).

57. For the same reasons as have been advanced with respect to the various aspects of the SA, the Defendant failed to comply with its common law duty to give reasons and thus acted in a procedurally unfair way.

58. Finally, I accept the Claimant’s submission that this was not a situation in which the Defendant simply had to “do the best it can”. Rather, there was clear guidance from the Sentencing Council which could, and should, have provided a framework for the Defendant to use. Even if a more broadbrush approach had been acceptable, the Defendant should still have provided reasons which were sufficient to show that important issues had not been missed: see, by analogy, the judgment of Collins Rice J in Taylor v Burton [2021] EWHC 1454 (Admin) at [54]-[55]. Because it did not do so, the Defendant failed to comply with its common law procedural duty to give reasons, resulting in procedural unfairness.

59. For these reasons Ground 1 is made out. Ground 2

60. The Claimant contended that the court should infer from the Defendant’s sentencing remarks that it failed to take into account, properly or at all, all of the relevant factors, other than as indicated above, including those drawn to its attention by the Claimant.

61. The paucity of reasons given by the Defendant, as detailed under Ground 1, means that drawing such an inference is appropriate. This failure to take into account all relevant factors was not only a breach of the statutory duties referred to under Ground 1 but was also unreasonable or irrational on general public law principles: see R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) at [98]. With all due respect to the learned Recorder and the Justices, this was not a proper sentencing exercise.

62. Ground 2 therefore succeeds. Ground 3

63. The correct approach to an appeal against sentence in the Crown Court is to conduct a rehearing to identify the appropriate sentence, to compare that to the sentence imposed by the magistrates, and to make a change (and allow the appeal) if and to the extent that there is a significant difference: see, for example, R v Knutsford Crown Court, ex p. Jones (1985) 7 Cr App R (S) 448 . In doing so, the court must take all relevant factors into account, as in any sentencing exercise.

64. In this case the Defendant explicitly referred on two occasions the test being whether or not the fine was “manifestly excessive”. It did so in introducing the issue on appeal and then in giving its final reasons. This phrase reflects one aspect of the test adopted on an appeal from the Crown Court to the Court of Appeal (Criminal Division), rather than the correct approach for appeal against sentence in the Crown Court.

65. The Defendant therefore misdirected itself, and led itself into error, by approaching the appeal from the wrong perspective. This error may have contributed to the Defendant’s other errors identified in Grounds 1-2.

66. Ground 3 therefore succeeds. Ground 4

67. Mr Walker KC conceded that if the claim succeeded on Grounds 1-3, it was not necessary to resolve Ground 4. I agree. Remedy

68. The claim for judicial review therefore succeeds on Grounds 1-3. Whether to re-sentence the Claimant

69. Under the Senior Courts Act 1981 , section 43(1) (c) if a Claimant who has been sentenced for an offence by the Crown Court on appeal against sentence applies to the High Court for a quashing order, if the High Court determines that the Crown Court had no power to pass the sentence, the High Court may substitute for the sentence passed any sentence which the court below had the power to impose.

70. Accordingly, the section 43(1) power can be exercised only where the Defendant “had no power to pass the sentence”. It has been held that an error of law can satisfy this test: see R v St Alban’s Crown Court, ex p. Cinnamond [1981] QB 480 at 485 (in respect of the Access to Justice Act 1960 section 16, the predecessor of section 43 ) and R (Sogbesan) v Inner London Crown Court [2002] EWHC 1581 (Admin) at [21], which expressly applied section 43 . In Sogbesan , the Divisional Court, comprising Rose LJ (then Vice-President of the Court of Appeal (Criminal Division)) and Gibbs J applied background for doing so was that the Court concluded that the original sentence was wrong in law as it was based on the erroneous conclusion that the custody threshold had been passed. section 43 and imposed a substituted sentence. The

71. The Claimant in this case asked the court to conduct a re-sentencing exercise under section 43 rather than remitting the case back to the Crown Court and Justices for determination. The Lead Lawyer for the Council has indicated in correspondence that the Council has no objection to this course.

72. I am satisfied that the Defendant’s sentence involved an error of law in the various ways I have described, in particular in respect of Grounds 2 and 3. This renders it permissible to use section 43 to re-sentence and in my judgment it is appropriate to exercise that power. Such a course is consistent with the overriding objective in civil proceedings, which these are, and indeed in criminal proceedings. Re-sentencing

73. In conducting the re-sentencing exercise, I have reminded myself of the statutory framework which I have set out under Ground 1. In particular I have in mind that section 125 requires that the level of the fine reflects the seriousness of the offence; and that seriousness is assessed by reference to the Claimant’s culpability in committing the offence and harm as defined in section 63. I have adopted the stepped approach set out in the Guideline and taken into approach as appropriate the reduction in sentence for guilty plea guideline.

74. The stepped approach requires the court first to reach a provisional sentence and to do so by assessing culpability and harm.

75. As to culpability, this was an offence where there was no requirement for the Claimant to have any level of intention, recklessness, negligence, dishonesty, knowledge understanding or foresight for the offence to be made out: it was, as I have said, an offence of strict liability.

76. According to the Guideline, in such cases culpability may be inferred from the circumstances of the offence in accordance with a table featuring an arrow indicating decreasing severity of culpability. In my judgement, this offence involved the lowest category of culpability within the table. There were no features of deliberate, reckless or negligent conduct. In particular, this was not negligent conduct by the Claimant because that is defined by the Guideline as occurring where the offender has “failed to take steps to guard against the act or omission”. That does not apply here. On the contrary, the evidence of Ms Adams makes clear that the Claimant had in place extensive systems to reduce the risk of section 65 breaches occurring. This breach occurred because of accidental omission in the exercise of an otherwise extensive system of safety regulation by the Claimant.

77. As to the harm caused by the offending, I have reviewed the various bullet points within the Guideline. It is clear on the evidence that no actual harm occurred. Accordingly this was a case of a risk of harm. It is necessary to consider the likelihood of harm occurring and the extent of it if it does. The Guideline makes clear that a risk of harm is less serious than the same actual harm; and that where the there is a risk of harm but no actual harm, the normal approach is to move down to the next category of harm although that may not be appropriate if either the likelihood or extent of potential harm is particularly high.

78. In this case, the Council’s case at its highest was that there was a medium risk of very serious harm. Even if that proposition is correct - and I bear in mind that the Claimant’s submission was that this was a case involving “some” risk of harm - applying the Guideline, this case falls within the lowest level of harm. That is because that level embraces even a case of high risk of serious harm, such that it must cover even the Council’s case at its highest on harm.

79. I therefore conclude that this was the case involving the lowest level of culpability and the lowest level of harm.

80. Insofar as the purposes of sentencing are concerned, Mr Walker KC’s submissions to the effect that none of the purposes of sentencing are of immediately obvious application to this case has some attraction. This is nevertheless a case where the fine imposed will involve an element of punishment and an element of intended deterrence and thus the reduction of crime.

81. Next, regard must be had to the aggravating features of the offence. In this case the only aggravating feature contended for by the Council and the only one that possibly applies are the Claimant’s previous convictions. Under section 65 , previous convictions must be taken into account if the court considers they can reasonably be treated as relevant, having regard in particular to the nature of the offence to which the relevant previous conviction relates, its relevance to the current offence and the time that has elapsed since the relevant previous conviction. The court must state that the offence is so aggravated if the court takes that view.

82. The evidence provided by Ms Adams does indicate that the Claimant was convicted on several occasions from 2022-2023, for similar section 65 offences committed at a time broadly proximate to this offence.

83. In this regard, Mr Walker KC referred me to the Sentencing Council guideline involving organisations involved in environmental offences. This provides that when considering the number and frequency of previous convictions, it may be relevant to consider the size of the offending organisation.

84. In my judgment that approach is relevant here. Accordingly, while considering the Claimant’s previous convictions, as I am required to do, I take into account the size of the Claimant organisation and the fact that at any one time it is involved in a very significant number of street work operations up and down the country as explained at [48] above.

85. In terms of mitigating factors, several of the example factors set out in the Guideline are relevant here. The Claimant has evidenced remorse. Ms Adams’ statement made clear that the Claimant provided co-operation with the investigation and made early admissions. There was little or no financial gain afforded to the Claimant by this offence. The activity in which the Claimant was involved was originally legitimate: initially it involved lawful activity on private land but only became unlawful because an element of the works extended on to a piece of public land.

86. Further, and perhaps most compellingly in terms of mitigation, Ms Adams’ evidence and demonstrated the extensive steps have been taken to address the offending behaviour involved in this section 65 offence. As she explained, meetings took place shortly after the events; relevant team leaders and operatives have been given final warnings; there has been a change in procedure since this offence in that, for example, jobs are issued differently; operatives have been re-briefed on the importance of safe working practices; and operatives now have access to a relevant code of practice on their mobile phones.

87. Ms Adams gave evidence that there have been no convictions for the Claimant since this offence and as at the date of her witness statement in June 2024, no prosecutions were pending.

88. All of these factors reduce the seriousness and reflect the personal mitigation for the claimant.

89. I have considered Ms Adams’ evidence of other comparable section 65 cases, simply by way of obtaining an overall impression. As she has indicated in her witness evidence fines of between very broadly £4,000 to £8,000 after an early guilty plea have been imposed for a series of section 65 offences committed by the Claimant.

90. Looking at the smaller number of cases in relation to which she has provided a little more detail, it can be seen from paragraph 33 to 35 of her witness statement that fines of £4,000 and £5,000 were imposed in July 2022 and January 2023 in cases where there was a high risk of serious harm or indeed in one case where there is a high risk of very serious harm, involving an offence committed near to a school.

91. Ms Adams also provided evidence of section 65 offences committed by a different provider, namely Broadband for the Rural North. I note that in relation to one of those offences on 26 May 2022, the organisation was fined £1,400 in circumstances where the evidence showed a great risk to safety

92. These cases provide a helpful broad overall pattern, but I make clear that I do not regard them in any way as precedent or binding.

93. For the reasons I have given by reference to the Guideline I have found that this section 65 offence involved the lowest level of culpability the lowest level of harm. There was an aggravating feature in the form of the previous convictions and I do take into account the fact that those ran from July 2022 and into 2023, but that there have had been no more by June 2024. I have taken into account the various mitigating factors I have set out and sought to ensure that the sentence imposed is proportionate to the relevant purposes of sentencing to which I have referred.

94. Taking into account all of those factors, my conclusion is that after a trial a fine of £6,000 would have been appropriate for the Claimant for this section 65 offence. Applying the appropriate one-third discount for an early guilty plea I impose a fine of £4,000. The level of the statutory surcharge relates to the level of the fine. I therefore substitute the original statutory surcharge for one of £1,600, that being 40% of the fine. Conclusion

26. For all these reasons the claim for judicial review succeeds on Grounds 1-3. Having determined that the Crown Court had no power to pass the sentence by reason of those errors, under the Senior Courts Act 1981 , section 43(1) (c), I impose a substituted sentence of a fine of £4,000 and a statutory surcharge of £1,600.