2005 [FSO], up to a maximum order of two years’ imprisonment; while the magistrates’ court has no power to impose a sentence of imprisonment and can only fine a defendant. There is no doubt that the courts have taken a much more serious approach towards fire safety cases over the last five years than in previous years, although there may be a number of reasons for that. My experience is that the court will usually consider two forms of sentence: imprisonment or fine. Obviously, a company cannot be sent to prison and can only be fined, but an individual can be sent to prison and will usually have less income than a company’s turnover with which to pay a fine.
Larger fines
Any fine must take account of a defendant’s means. Where a company is concerned, the court will consider its turnover and its profit, usually for the previous three year accounting period prior to sentence. An individual will be fined according to their income and capital. The court usually relies on the individual to provide this, but if it is not provided, the court will assume that a defendant has the means to pay whatever fine the judge thinks appropriate. My cases reveal an overall average
fine per case or defendant between 2006 and 2019 of £10,520.33, while the average fine per charge is £1,403. Significantly, the average fine per case for the first seven years following the FSO coming into force (2006 to 2013) was only £6,507.33. The average fine over the last five years (2014 to 2019) was £20,375.85. This begs the question: what is the reason
for the increase? Is it the Grenfell effect? Whilst I accept that this would be the natural conclusion to reach, I don’t think it is that straightforward. There are two other factors which have significantly affected sentencing in fire safety cases over the last five years.
22 APRIL 2020
www.frmjournal.com
FSO in focus T
HE CROWN Court has a wide range of sentences available to it under the Regulatory Reform (Fire Safety ) Order
We must consider multiple factors when judging sentencing and costs under the Regulatory Reform (Fire Safety) Order 2005, advises Warren Spencer
Mitigating factors
Firstly, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 12 March 2015 and removed the £5,000 per charge cap on magistrates’ court fines under the FSO (and all other similar legislation). Previously, only the Crown Court had the power to issue unlimited fines, but the removal of the £5,000 cap resulted in magistrates’ courts having significantly increased powers, and they immediately began to use them. Secondly, the Health and Safety Offences
Sentencing Guidelines were published on 1 February 2016. However, these guidelines specifically stated that they did not apply to fire safety cases. Nevertheless, the courts began to use them in fire safety cases, and in two cases which went to the Court of Appeal (R v Sandhu and R v Butt), it was held in both instances that reference to the guidelines as a barometer for sentence was acceptable. This had a very significant impact upon the fines handed out to corporate defendants. The Grenfell Tower tragedy occurred on 14 June 2017 and the average fine per charge since Grenfell is £3,135, while the average fine per case since Grenfell is £27,519.33. Both figures are more than double the previous average. There is no doubt in my mind that the
Grenfell tragedy has increased the seriousness of fire safety offences in the eyes of the court. However, I believe that the significant increase
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60
