Weighing up the law - October 2018
Laura Page studies Appeal Court guidance on sentencing fire safety offences
SENTENCING FOR fire safety offences can be difficult to predict. With no applicable guidelines, courts have been criticised for inconsistency. The Court of Appeal, in allowing an appeal against a sentence in R v Butt, has however confirmed the approach for sentencing courts to take.
In 2017 hotelier Mr Butt was convicted of three counts of failure to take reasonable general fire precautions, and one count of failure to equip premises appropriately with firefighting equipment, fire detectors and alarms, under the Regulatory Reform (Fire Safety) Order 2005 [FSO]. He was sentenced to six months’ imprisonment suspended for 18 months with a tagged curfew for six months, fined £250,000 and ordered to pay £14,210 costs.
He appealed against the fine and costs, citing his ‘lack of previous convictions, his guilty plea and that nobody was actually hurt by the failures’, and arguing that the suspended sentence and curfew were punishment enough. Successful appeals are rare: the sentence imposed must be ‘manifestly excessive’, and appeal courts are generally slow to interfere in such matters, doing so only where necessary to avoid an injustice.
In Mr Butt’s case, the Appeal Court noted the lack of applicable sentencing guidelines: although the inclusion of fire safety offences was suggested while the health and safety sentencing guideline (the Guideline) was being developed, it was felt that their inclusion may distort sentence levels, perhaps because an FSO breach is only an offence if it puts relevant persons at risk of serious harm or death. Also, offences under the Health and Safety at Work etc Act 1974 only require risk to be of material harm.
If included in the Guideline, fire offences would fall into the highest category of harm, pushing sentences up. It is against this background that the court’s decision to reduce the fine to £150,000 has particular significance. Key findings included:
• although outwith the Guideline, its structure in ‘identifying the steps involved in determining the seriousness of the offending might usefully be followed’ in such cases
• the Guideline requires an assessment of culpability and harm:
- in prosecutions under the FSO, the harm risked will be at the highest level in the Guideline, because of the risk of death or serious injury
- the level of culpability will vary, depending upon the circumstances
- the likelihood of harm occurring depends upon the chances of fire breaking out
• evidence of enhanced risk of fire would be a seriously aggravating factor; so too the incidence of risk to many and actual harm
Guidance was also given on imposing both a fine and custodial sentence, a combination described as ‘particularly apt’ when the breach related to an offender’s business/employment, to wealthy offenders, or to when the offender is able to continue in well remunerated work. The combination may be appropriate where:
- a sentence is suspended
- a confiscation order/compensation is unlikely
- the offender is/will be able to pay a fine
The Sentencing Council has published its consultation on sentencing offences for which there is no specific guideline. It includes offences under the FSO, for which it proposes that steps set out in the Guideline are followed. The Appeal Court has pre empted this and brought some much needed clarity to sentencing in this area. This will be of little comfort to those guilty of the most egregious FSO
breaches, who can expect increasingly hefty fines and a possible custodial sentence, even if breaches don’t result in actual harm.
Laura Page is a solicitor in the health and safety team at Pinsent Masons