Laying down the law - October 2018

THE RESULTING publicity not only educates the public as to fire safety requirements, but it also serves to deter responsible persons from turning a blind eye to their fire safety responsibilities.  Nothing aids compliance more than the knowledge that there can be significant financial and personal repercussions for those who wish to ignore the Fire Safety Order.

Fire and rescue services are often therefore anxious to obtain a “good result” as a result of enforcement action.  A “good result” is usually a significant sentence. Historically, there has been a marked lack of consistency in the sentencing of defendants found guilty of or who have pleaded guilty to fire safety offences. It had been hoped, that the publication of the sentencing guidelines for health and safety cases in November 2015, would assist matters but unfortunately the guidelines did not apply to fire safety cases. 

The Response to consultation produced prior to the drafting of the guidelines clearly stated: ‘Other offences, which were suggested for inclusion included fire safety offences. These were suggested by 5 respondents, including the London Fire and Emergency Planning Authority. The council considered the inclusion of these offences, but decided against it. The council felt that applying the factors in the guideline to offences involving risk of fire had the potential for distorting sentence levels.’

I am not sure what ‘applying the factors…. to offences involving risk of fire had the potential for distorting sentence levels’ actually means in a practical sense. Does it mean that fire safety cases would result in disproportionately higher fines than in other health and safety cases? Or could they be disproportionately lower?

However, the recent Court of Appeal case of R V Sandhu [2017] has not only helped to clarify matters, it has also confirmed that courts may properly refer to the health and safety sentencing guidelines as they “provide a useful check considering whether a sentence arrived at by applying the statutory material… has produced a sentence which is either unduly lenient or manifestly excessive”

The Guidelines adopt a nine-step approach to reaching the final sentence. Significantly, step one deals with the assessment and nature of the breaches in issue. Steps two to nine deal with the determination of the penalty, ranging from a fine to a period of imprisonment.

Step one, which determines the offence category, asks the court to firstly consider the defendant’s culpability. A deliberate breach of or flagrant disregard for the law would result in a very high category. Culpability would be high where 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;
• Ignoring concerns raised by employees or others;
• Failing to make appropriate changes following prior incidents, exposing risks to health and safety; and
• Allowing breaches to subsist over a long period of time or serious and/or systemic failure within the organisation to address risks to health and safety

Culpability would be medium if, for example, systems were in place, but these were not sufficiently adhered to or implemented. A low category would be where failings were minor and occurred as an isolated incident.

Once culpability is assessed the court must then consider the harm aspect and I will focus on this aspect in my next column.