Weighing up the law
Laura White describes how sentencing for
fire safety offences is about to change
transparency and consistency can be an issue. Although the inclusion of such offences was suggested while the Health and Safety Guideline (the HS Guideline) was being developed, the Sentencing Council ultimately felt that ‘applying the factors in the guideline’ to such offences ‘had the potential for distorting sentence levels’. An appetite for guidance on such issues is clear,
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however, and has been noted by the council, which published its consultation on sentencing offences for which there is no specific guideline, including those under the Regulatory Reform (Fire Safety) Order 2005 [FSO]. That guideline is intended to be in force from December and, for offences under the FSO, directs sentencing courts to follow the HS Guideline. Meanwhile, the Appeal Court preempted
this new guideline in the recent case of R v Butt, also bringing some much needed clarity (for more on this, see last month’s column). Since then, Reading Magistrates Court reportedly fined landlord Crestcourt Properties Limited (CPL) £177,000 for four offences under the FSO, in apparently similar circumstances. Unfortunately, transcripts of these hearings are not published, and so precise details and sentencing comments (particularly whether reference was made to the HS Guideline) are not available, but it appears that CPL pleaded guilty. From what we know, would an application of the HS Guideline have made a difference? It requires a sentencing court to consider firstly
the defendant’s culpability and harm. Assessing these in FSO prosecutions, the harm risked will be at the highest level in the HS Guideline because of the risk of death or serious injury; an FSO breach is only an offence if it puts relevant persons at risk of serious harm or death.
Culpability depends on the case circumstances. Here we know little detail, except that fire and rescue
E’VE DISCUSSED before the difficulties of predicting sentences for fire safety offences. With no applicable guidelines,
service inspectors found failings including fire alarms not working, a lack of sufficient fire doors and an external escape route in a poor state of repair. These suggest that it could have been assessed as a high culpability offence (the offender fell far short of the appropriate standard; for example, by failing to put in place measures that are recognised standards in the industry). Had there been evidence of deliberate breach of, or flagrant disregard for, the law, culpability may have moved into the very high category. The court must then look at financial information. Although precise details aren’t available, a brief look online puts CPL in the micro company bracket, with a turnover under £2m. For a micro company and a high culpability category one offence, the HS Guideline gives a starting point of £160,000 and a range of between £100,000 and £250,000. Very high culpability increases this to a starting point of £250,000 and a range between £150,000 and £450,000. With a one third reduction available for the early guilty plea, it seems the sentence imposed was in line with the HS Guideline. Here the case, and individuals, may be prosecuted for fire safety offences, as in R vs Butt, where he chose not to appeal his sentence. It is a sobering thought that for an individual convicted of a high culpability harm category one offence, the HS Guideline has a starting point of one year in custody with a sentence range between 26 weeks and 18 months. The trend for increasing fines for health and
safety offences shows no sign of abating, and looks likely to be equally applicable to breaches of the FSO. Custodial sentences are increasing too, as resolve to hold those responsible for serious breaches (even where there is no actual harm) strengthens
Laura White is a solicitor in the health and safety team at Pinsent Masons. For more information, view page 5
www.frmjournal.com NOVEMBER 2018 23
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