Laying down the law - January 2019

ONCE THE culpability of a defendant is assessed the court must then consider the harm aspect. The guidelines contain a matrix to enable the court to consider both the likelihood of harm, together with the likely consequences of the risk, namely seriousness of harm risked. Here the court is asked to consider whether the offences fall into Harm Categories 1-4 by considering whether there is a high, medium or low likelihood of harm, and thereafter consider whether death, physical or mental impairment, reduced life expectancy or progressive permanent or irreversible conditions would be suffered.

Finally, the court would be asked to consider whether the offence exposed a number of workers or members of the public to the risk of harm (the greater the number of people, the greater the risk of harm). Then, if applicable, whether the offence was a significant cause of actual harm (where relevant persons have actually suffered death or serious injury as a result of the breach).

I believe that it is the likelihood of harm aspect of the guidelines, which does not fit well with fire safety offences. This is because the guidelines ask the court to consider the actual chances of a risk occurring together with the resulting likelihood of harm to relevant persons. The guidelines make it clear that it is not necessary to prove that the offence caused any actual harm. The offence is in creating a risk of harm. 

Significantly, fire safety offences (under articles 8-22) deal with the risk of death or serious injury in the event of a fire. (Article 32(1)(a)). This would cause a problem for a court using these guidelines, because the court is being asked to consider the likelihood of harm generally, and not the likelihood of harm in the event of a fire.

If the Sentencing Council believe that the likelihood of harm would be low in fire safety cases – because the risk of a fire actually occurring is low, then it has to be accepted that sentencing levels would be distorted. Alternatively, it could be argued that because the majority of fire safety offences require a risk of death or serious injury to be present, then sentences will usually be disproportionately high.

The leading cases of R v Howe and R v New Look remain the leading authorities upon sentence in fire safety matters. The case of R v S Howe & Son (Engineers) Ltd is the leading case considered by the Courts when approaching sentence in fire safety matters. The case of Howe is not a fire safety case and its judgment was delivered in 1999 some seven years before the FSO. The case lays down the foundations for the way in which all health and safety cases (including fire safety) should be approached when it comes to sentence. The Court will sentence upon the facts of the case and the personal circumstances of the Defendant or Defendant Company. But the Court will give more weight to certain matters than others. Examples of these are as follows:

Aggravating Features

•    Death as a resulting consequence of a breach;

•    A failure to heed previous warnings; and

•    A risk run specifically to save money

Mitigating Features

•    Prompt admission of responsibility;

•    Timely plea of guilty;

•    Steps to remedy deficiencies after they are drawn to the defendant’s attention; and

•    Good safety record

Other Relevant Matters

•    The degree of risk and the extent of the danger created by the offence;

•    The extent of the breach; and

•    The Defendant’s resources and the effect of the sentence upon its business.

When dealing with a company, the case states that a fine needs to be large enough to bring home to the defendant shareholders the message that the workplace must be a safe environment for those who work there and for other members of the public who may be affected. However, a fine should not be so large so as to imperil the earnings of employees or create a risk of bankruptcy – although there may be cases where the offences are so serious that the Defendant ought not to be in business.

In my view, the recent case of Sandhu has now allowed the courts to put fire safety cases on the same level as health and safety cases from a sentencing point of view. The case of Sandhu was referred to in a recent case in which a hotelier received a custodial sentence of 20 months imprisonment for fire safety breaches. It is also increasing the level of fines. In my own experience, the types of cases which were attracting fines of £5000-£20,000 five years ago are now attracting fines of £40,000-£80,000.

The increase in penalties for fire safety offences can only be a good thing. Ultimately, heavy sentences act as a deterrent to others who may commit similar offences. The increase in custodial sentences for individuals, and significant fines for companies sends out a stark message for those who believe that fire safety management within their premises is a low priority.