Fire Safety Fine Reduced on Appeal

At Cardiff Crown Court on 26 February 2021, Farrington Care Homes Limited (Farrington) successfully appealed the record-breaking fine imposed on them by a District Judge, with a reduction of nearly £125,000, for breaches of the Fire Safety Order (the Order) at Hillcroft Residential Care Home (Hillcroft) in Cardiff. The decision of the Court shows the limitations of the assistance given by the Health and Safety Sentencing Guidelines in cases of fire safety. Farrington were represented at the appeal by Mark Ruffell (Pump Court Chambers) who was instructed by Gemma Nicholas (Ridouts Professional Services PLC).

Hillcroft had a history of breaching the Fire Safety Order, followed by upgrading of its fire safety protection, without any need for prosecution. In May 2017, a Fire Safety inspection found that a number of matters needed to be improved and an enforcement notice was issued. At the end of the period given to improve matters, many of the matters had not been resolved. The work was eventually completed by June 2018. Due to the previous history, South Wales Fire and Rescue Service (SWF&RS) decided to prosecute. A further inspection in March 2019 found further matters needing to be improved, and a further enforcement notice was issued. All but one of those matters were dealt with during the relevant period. The single matter outstanding resulted in a prosecution, even though it related to a certificate that was acquired 5 days after the period and it showed that the relevant item – an external fire escape – was safe during the relevant period.

Farrington pleaded guilty to seven offences of contravening Article 32 (1)(d) of the Regulatory Reform (Fire Safety) Order and one offence of contravening Article 32(1)(a). On 10 September 2020, Farrington were sentenced by the District Judge. SWF&RS had submitted that the Health and Safety Guidelines could be used as a guide as to whether the sentence considered was too lenient or too excessive. They also submitted that the breaches were either a deliberate or a flagrant disregard of the regulations. In addition, they had successfully argued that the Magistrates’ Court could use the ‘Health and Safety guideline as a check only, this is a case which would be envisaged as a Level A case under that Guideline’. The District Judge referred to the case as being very high culpability and falling at the top end of the scale in the guideline. The Health and Safety Guideline referred to a starting point of £450,000, with a range from £300,000 to £1,600,000.  The District Judge at Cardiff Magistrates’ Court imposed a total fine of £423,333.33, having given full credit for a guilty plea from a notional starting point fine of £635,000. At the time, this was the largest fine ever imposed for breaches of the Fire Safety Order.

Farrington changed their legal representation and sought advice from Ridouts, who instructed Mark Ruffell. They together advised that Farrington should appeal the sentence on two basis: first that significant mitigation had not been placed before the Magistrates’ Court and second that the Court could have regard to the sentencing principles in the Health and Safety Guidelines but it should not have regard to the sentencing ranges set out in the guidelines. Instead, it should have regard to sentences upheld on appeal as a better guide as to where to pitch the sentence.

On appeal, Farrington provided the Court with evidence for how they had been addressing fire safety issues with a new alarm system installed prior to the inspection in 2017 and they had already engaged fire consultants to secure compliance. Since the enforcement proceedings, they had retained a new fire safety consultant who had ensured that the Home remained compliant thereafter. It was submitted that the evidence showed that they had made efforts to become compliant before and after the inspections and the case fell into the category of being slow to progress matters rather than ignoring or deliberately refusing to comply. This reduced Farrington’s culpability. In all other respects, Hillcroft was well run with no expense spared.

It was submitted that the Court was concerned with two elements, punishment and deterrence. In relation to deterrence, the Court could take into account whether the Appellant had learned its lesson and was now compliant as a mitigating factor. It was accepted that in R. v. Sandhu [2017] EWCA Crim 908, the Court of Appeal had endorsed that the Health and Safety Guidelines provided a ‘useful check for considering whether a sentence arrived at by applying the statutory material…has produced a sentence which is unduly lenient or manifestly excessive.’ In R. v. Butt [2018] EWCA Crim 1617, the Court had set out how the Sentencing Council had considered that the Health and Safety Guidelines might be distorted upwards if they dealt with fire safety offences, so such offences were omitted;  and that in such prosecutions the harm risked will always be at the highest level. On behalf of Farrington it was accepted that, whilst the Court was concerned with harm at the highest level, there was a range, perhaps not that broad, between (at the upper end) a fire breaking out and harm caused, and (at the lower end) only the risk that if a fire had occurred then such harm might be caused. It was submitted that there was a danger in looking at the sentencing ranges of the Health and Safety Guidelines. They were not designed for Fire Safety Order cases and had the tendency to set fines at high levels without any knowledge of whether the principles that underlie their sentencing ranges are appropriate to the huge variety of companies that may be charged with Fire Safety Order offences. As had happened in the Magistrates’ Court, if referred to the fines section of the Health and Safety Guidelines, a judge would look at them and pick a sentence, rather than start from first principles and consider whether the starting point was appropriate with reference to other cases.

The Court was taken to two cases where sentences had been upheld by the Court of Appeal with some relevant comments. In New Look Retailers Limited v The London Fire and Emergency Planning Authority [2010] EWCA Crim 1268, a fire had broken out, a fire exit door was decommissioned and there was a risk to customers and passers-by from the fire. The company had a turnover and profits that were substantially greater than Farrington. The Court viewed efforts to remedy breaches of fire safety legislation as superficial. The Court had taken a starting point of £600,000, then given full credit for guilty pleas and imposed a fine of £400,000. The Court held ‘The fines were, we recognise, severe, but they were not in our judgement manifestly.’ The sentence was for offences more severe than the breaches faced by Farrington.

In R. v. St Michael’s Hospice Hastings [2019] EWCA Crim 161, a fire had broken out resulting in three deaths; fire exit doors appeared unusable and staff were untrained in evacuation procedure. The sentencing court had taken a starting point of £425,000 and given full credit, imposing a fine of £250,000. This case was sentenced after the Health and Safety Guidelines had come into force on 1 February 2016. The Court of Appeal concluded that the sentence was not manifestly excessive and that the sentencing Judge had ‘significantly reduced her starting point to reflect the applicant’s mitigation and its charitable status.’

In reaching its decision on sentence, the Court accepted the submissions that this was not a deliberate or flagrant disregard of the Order and instead that there was unacceptable slowness for a variety of reasons in achieving compliance. The Court accepted that, whilst the harm level was the highest, there was a range and this case fell at the lower end of the range. The Court accepted that the Home had made considerable efforts to achieve compliance thereafter. In addition, the Court had regard to both New Look Retailers and R v St. Michael’s Hospice. The Judge noted that the Court of Appeal, whilst considering what was said in Sandhu about the Health and Safety Guidelines acting as ‘a check only’, it did not go on to suggest that the ranges in the Health and Safety Guidelines should be explored. As a consequence, in Farrington’s appeal, the Court considered that this was significant and it should not try to use the Guidelines to set the fine. The Court considered that the starting point was £450,000, with full credit, it reduced this to impose a fine of £300,000. During his sentencing remarks, the learned Judge requested that consideration be given for a sentencing guideline for Fire Safety Offences.

Following the hearing, Mark Ruffell stated: ‘This was a victory for common sense. The power of Magistrates to impose unlimited fines whilst being distracted by guidelines for other offences had resulted in this case to an eye-watering fine being imposed that was out of all proportion to the breaches and subsequent improvements. If sentencing guidelines are drafted in the future, it is vital that someone decides where to pitch a case such as this, with slow but eventual compliance, which is so different from a case with no compliance, leading to a fire and harm caused.’ Gemma Nicholas from Ridouts stated: ‘When this case is compared to the case of New Look Retailers it is clearly apparent that the fine imposed on Farrington in the Magistrates’ Court was manifestly excessive.  It is pleasing that the Crown Court recognised the valid efforts of Farrington to comply with fire safety legislation’.

For further information of Mark’s practice or to instruct him please contact her clerks Jonathan Cue or Tom Wood on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.