The Crown Court has a wide range of sentences available to it, with a maximum order of 2 years imprisonment. The Magistrate’s 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 5 years than in previous years, but there may be a number of reasons for that. My experience is that the court will usually consider two forms of sentence, namely 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.
Any fine must take account of a defendant’s means. With a company, the court will consider its turnover and its profit, usually the previous three-year accounting period prior to sentence. An individual will be fined according to his or her income and his capital. The court is usually reliant upon the individual to provide this, but if this 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. The average fine per charge is £1403.
Significantly, the average fine per case for the first 7 years following the Order coming into force (2006-2013) was only £6507.33. The average fine over the last 5 years (2014-2019) 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 5 years.
Firstly, on 12 March, 2015, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This removed the £5000 per charge cap on Magistrates Court fines under the Fire Safety Order (and on all other similar legislation). Previously, only the Crown Court had had the power to issue unlimited fines, but the removal of the £5000 cap meant that Magistrates’ Courts had significantly increased powers and they immediately began to use them.
Secondly, on 1 February, 2016, the Health and Safety Offences Sentencing Guidelines were published. 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 cases that reference to the guidelines as a barometer for sentence was acceptable.
This is had a massive impact upon the fines handed out to corporate defendants.
The Grenfell tragedy occurred on 14 June, 2017.
The average fine per charge since Grenfell is £3135 and the average fine per case since Grenfell £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 in fines is down to the combined impact of the new sentencing guidelines, the removal of the £5000 fine limit and, of course, Grenfell.
Perhaps surprisingly, the highest fine that I am aware of is still the New Look case in 2010 which went to the Court of Appeal but was still held at £400,000.
I have been involved with 26 cases in which custodial sentences have been imposed, but only 6 of those cases have involved immediate custodial sentences. The rest have been suspended sentences.
The longest sentence of imprisonment in a case that I have been involved with is 20 months. This involved a case where there were repeated breaches of prohibition notices at a wedding venue with sleeping accommodation.
The order provides a maximum sentence of imprisonment of 2 years. As 95% of cases result in a guilty plea, a maximum of a one third reduction in sentence is usually applied (dependant upon the timing of the guilty plea), which would result in a 16 month sentence of imprisonment, but only in the most serious cases, (those which would attract the maximum sentence) provided a guilty plea was entered at the earliest stage. The most serious cases would involve either a fire or the serious injury or death of a relevant person.
One case, involving the owner of a hotel resulted in an 18 month prison sentence, but this was after a trial, so no reduction in sentence was applied.
The amount of costs ordered has also increased as time has passed. The average costs between 2006 and 2013 was £3393. The average costs over the last 5 years (2014-19) £9171.48. Again, there could be a number of reasons for this. I believe that as fire services have become more confident as prosecutors they have taken on larger and more corporate defendants, thus leading to larger fines and larger costs orders. These costs do not just involve lawyers’ fees, but also the cost of the time of fire safety officers involved in bringing prosecution cases.
It is good practice when sentencing to always ensure that the fine exceeds the costs of the case. Obviously, when Magistrates were limited to £5000 per charge (usually with one third off following a guilty plea) then costs Orders were proportionally reduced so that they did not exceed the fine. Once the £5000 limit was removed and fines substantially increased, then cost Orders could increase proportionately.
In addition, fire services have been taking more complicated cases and prosecuting not only the responsible person under the Order but also persons with control under article 5 (3). This has inevitably led to more costs being involved in the preparation of cases.
The courts are taking fire safety cases more seriously, and this has been reflected in increased fines and costs orders as time has passed since the Order came into force. In addition, fire services are taking on bigger, more complicated prosecutions, and often larger corporate defendants with the means to pay large fines.
Before Grenfell I used to spend a large proportion of my address to the court explaining what could happen as a result of the prosecuted breaches in the event of fire. I don’t have to do that anymore.
|Average fine per case||Average fine per charge||Average costs|
|Post Grenfell 14.6.17||£27,519||£3,135||£9,110|
fire Safety Solicitor/advocate/lawyer
fire safety lawyer