Sentencing Fire Safety Cases – A Missed Opportunity
Last year I wrote 2 articles (March and April) which considered the way in which the courts approached sentencing in cases involving breaches of the Fire Safety Order. I am frequently asked by courts to assist in the sentencing process due to the lack of detailed written guidance which is usually provided in relation to more common offences.
It was with much anticipation, therefore, that I awaited the publication of the Sentencing Guidelines for Health and Safety Cases. When they were finally produced in November 2015, I was impressed with the clear and logical approach adopted by the Sentencing Council. The Guidelines took full account of the vital elements involved in offences and breaches of legislation dealing with the risk of harm to relevant persons.
My only question: Do the Guidelines apply to fire safety cases?
Unfortunately, the answer is no. It is not clear from the Guidelines themselves, that fire safety cases have been specifically excluded. However, when I perused the Response to Consultation produced prior to the drafting of the Guidelines I was quickly disappointed. Page 15 reads:
‘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?
The Guidelines adopt a 9 step approach to reaching the final sentence. Significantly, step 1 deals with the assessment and nature of the breaches in issue. Steps 2 to 9 deal with the determination of the penalty, ranging from a fine to a period of imprisonment.
Step 1-Determining 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
• 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. 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.
So it looks like the leading cases of Howe and New Look remain the leading authorities upon sentence in fire safety matters. Those, like me, who were hoping for some clarity and consistency in relation to the various courts approach to sentencing fire safety matters will have to wait a little longer. (Unless, of course, sentencing judges and magistrates quietly apply the same principles outlined above to fire cases in the privacy of their consultation and robing rooms in any event).
The Sentencing Council do provide some hope for the future by stating:
The Council has noted the appetite that exists for guidance to be available for all of the offences proposed and will consider whether they would be appropriate for inclusion within other relevant Guidelines that may be developed in the future.
I don’t believe that the existing Guidelines would have to be tweaked too much to make that possible.