Butt v R.

In sentencing serious breaches of the Regulatory Reform (Fire Safety) Order 2005, a court may use the structured culpability-and-harm approach in health and safety sentencing guidance, although that guidance does not apply directly. The harm risked is at the highest level because the offences require a risk of death or serious injury. The likelihood of fire, the number exposed and actual harm remain relevant to sentence.

A substantial fine may exceptionally accompany a suspended custodial or community sentence, particularly for business-related offending and an offender with substantial means. Means include capital as well as income. The offender must provide reliable financial evidence, and the overall sentence must remain proportionate.

The appellant owned premises converted into a bed and breakfast or boutique hotel. He was the responsible person for fire safety. Following repeated warnings, enforcement action and assurances that upper floors would not be used, inspectors found occupied rooms in the upper floors and basement, unsafe escape arrangements, a non-fire-resistant lift shaft and an inadequate alarm system.

He pleaded guilty in the Crown Court at Southwark to four offences under the Regulatory Reform (Fire Safety) Order 2005. The judge imposed concurrent suspended sentences of six months’ imprisonment, a six-month curfew, a fine of £250,000 and costs. The appeal challenged the totality of sentence, the addition and amount of the fine, and the costs order.

Appeal allowed in part. The court quashed the £250,000 fine and substituted a fine of £150,000. The suspended sentences, curfew, costs order and sentence in default remained unchanged.

1. There is no sentencing guideline directly applicable to offences under the Regulatory Reform (Fire Safety) Order 2005. The court followed the approach adopted in R v New Look Retailers Ltd [2011] 1 Cr.App.R. (S) 57, which applied the health and safety principles in R v F. Howe & Son (Engineers) Ltd [1999] 2 Cr.App.R. (S) 37. The health and safety guideline’s structure could usefully guide the assessment, but it had not been extended to fire safety offences because it could distort sentencing levels upwards.
2. For these offences, the harm risked is at the highest level because a risk of death or serious injury is an ingredient. Culpability depends on the facts. The likelihood of harm depends on the chance of fire, and an enhanced fire risk would be seriously aggravating. Risk to many people and actual harm are also aggravating features. Here, culpability was very high because the appellant flagrantly disregarded repeated warnings, but there was no enhanced risk of fire.
3. A fine could properly be imposed with the suspended sentence. Such a combination is especially apt for business-related offending and offenders with substantial resources. Resources include income and capital, and an offender must provide reliable financial material to enable the court to assess means.
4. The appellant had substantial assets and could pay a substantial fine and costs. However, the curfew added little punishment in his circumstances, and a £250,000 fine was excessive when viewed with the sentence as a whole. A starting point of about £200,000, reduced for the timing of the guilty pleas, produced a fine of £150,000.
5. The prosecution’s detailed schedule established that its costs had actually and reasonably been incurred. The costs order of £14,210 was therefore upheld.

• Court of Appeal (Criminal Division) In [2018] EWCA Crim 1617, the court allowed the sentence appeal only to reduce the fine from £250,000 to £150,000.
• Crown Court at Southwark His Honour Judge Robbins imposed concurrent suspended sentences of six months’ imprisonment, a curfew, a £250,000 fine and costs following guilty pleas to four fire-safety offences.