Nevins, R. v

For fire-safety offences, sentence must reflect the gravity, duration and deliberateness of the breach, including the extent to which it compromised safe escape in the event of a fire. The absence of an actual fire does not diminish that risk. A substantial fine may be justified where the offender has considerable means, but ability to pay does not require a fine to be calculated by reference to assets alone. Business pre-tax profits may be relevant to means. A prosecution-costs order may properly include costs arising from initial uncertainty about who was legally responsible, where that uncertainty was reasonably maintained by the offender’s conduct.

The applicant pleaded guilty at Ipswich Crown Court to four offences under the Fire Precautions Act 1971. They concerned unauthorised alterations to a hotel which impaired escape routes, inadequate emergency lighting, and failures to test alarms and extinguishers as required by the fire certificate. Two further breaches were taken into consideration.

Judge Holt imposed fines totalling £145,000 and ordered payment of £49,988 prosecution costs. The applicant renewed an application for leave to appeal against the fines and costs order after a single judge had refused leave. The central issues were whether the fines were manifestly excessive and whether he should bear all prosecution costs, notwithstanding that proceedings against his wife and daughter had been discontinued.

1. The renewed application for leave to appeal was refused. The fines, although very heavy, were not manifestly excessive.

2. The breaches created a substantial potential risk to hotel guests by making safe escape more difficult in the event of fire. It was immaterial that no fire occurred and that the breaches did not themselves increase the likelihood of a fire. The failures were deliberate, persisted over more than two years, and were made despite a reminder from the fire authority. They were intended to save cost.

3. In assessing sentence, the court applied the approach in R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R(S) 37: the important consideration was the gravity of the breach, for which the extent of the defendant’s departure from the required standard was helpful. The applicant’s substantial wealth justified fines large enough to have a real punitive effect. However, means did not require calculation by reference to assets alone. The judge had properly considered the business’s pre-tax profits, consistently with R v ESB Hotels Ltd [2005] 2 Cr App R(S) 56.

4. The original prosecution-costs order was justified. The applicant’s conduct had left the prosecution uncertain who occupied the premises for the purposes of the Fire Precautions Act 1971. It was therefore reasonable initially to charge his wife and daughter as well as him. There was no basis to interfere with the order requiring him to pay the whole of the prosecution’s costs.

5. On the prosecution’s separate application for costs of the renewed leave hearing, the court exercised its power under section 18(2)(a) of the Prosecution of Offences Act 1985. It held that some work was unnecessary and that fire officers’ costs were inappropriate. It ordered the applicant to pay £2,000.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1033, refused the renewed application for leave to appeal against sentence and the original prosecution-costs order. It separately ordered £2,000 prosecution costs for the leave application.

• Ipswich Crown Court: On 17 June 2008, following guilty pleas to four offences under the Fire Precautions Act 1971, Judge Holt imposed fines totalling £145,000 and ordered payment of £49,988 prosecution costs.