England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 June 2017

1. THE RECORDER OF LEEDS: On 13th April 2017 the appellant Amandeep Sandhu, who is now aged 42, pleaded guilty before the Magistrates' Court in Sheffield in respect of five offences of failing to comply with Articles 8 to 22 and 38 in relation to the requirements and prohibitions where failure risks death or serious injury in the case of fire, contrary to Articles 15, 32(1)(a) and 32(8) of the Regulatory Reform (Fire Safety) Order 2005 and section 1 of the Regulatory Reform Act 2001. He was committed for sentence to the Crown Court at Sheffield pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 8th May 2017 he was sentenced by Mr Recorder Thackray to eight months' imprisonment concurrent on each of the five charges. He was ordered to pay the victim surcharge order.
2. The facts that led to his prosecution were as follows. The appellant's company Meridius owned The Cutlers Hotel in Sheffield, a 45 bedroom hotel. The appellant accepted that the day to day running of the hotel was his responsibility at the relevant times.
3. On 12th September 2014, Barnsley Metropolitan Borough Council (the prosecuting authority) received a phone call from a member of the public who had been a guest at the hotel and who had overheard staff discussing the fact that neither the fire alarm nor the emergency lighting were working. A fire safety officer visited the premises later that day. His preliminary finding was that the fire alarm was not working. A prohibition notice was served that day. In fact the previous day Meridius had been placed in administration and their administrators had appointed Convivial Management Services to manage the hotel. On being served with the notice, Convivial decided to close the hotel to guests.
4. Three days later, on 15th September, there was a fire safety audit of the hotel. That revealed five breaches reflected in the offences charged.
5. Breach one was that the fire alarm was not operational on 12th September 2014. An employee confirmed that when he started work at the hotel in late August there was no fire alarm system in place, which was common knowledge amongst staff. Interviewed about this, the appellant said that alternative fire precautions had been put in place. He said that staff were instructed to walk the corridors at night. Staff however said that this was a standard procedure which was in place before any concerns arose about the fire alarm. The appellant could produce no documentation in relation to this matter.
6. On 15th September the appellant accepted there had been problems with the fire alarm. He had commissioned qualified fire alarm technicians, Crown Fire Services to repair the system. Their director Mr Ward had previously made recommendations to the appellant that had not been followed. By the summer of 2014, Mr Ward told the appellant there was no point in trying to carry out regular service of the fire alarm panel because it was in such poor condition. A decision was made to replace the fire alarm panel. This then revealed faults on all of the zones in the fire alarm system. A majority of the zones were not working properly. This was reported to the appellant at the end of August 2014. Crown Fire Services returned early the next month to carry out fault finding on the fire detection system. This revealed there were still faults on four zones - two-thirds of all the zones in the hotel. Those zones covered the restaurant, the beer cellar, boiler room and three entire floors of the building. Faults were still showing when the premises were inspected on 12th September. This evidence demonstrated that the system was in significant fault, at least between 28th August and 12th September 2014. Residency records showed that the hotel had an occupancy of between 35 to 97 per cent each day during that period.
7. Breach two was the failure to conduct a suitable and sufficient assessment of the risks in relation to fire safety. The risk assessment handed to the inspector on 12th September was dated July 2010. It should have been reviewed at least annually. There is no evidence it had been reviewed. It was a specific legal requirement that where a person employed five or more people, where the premises were subject to a licence (as was the case here), that any reviews must be recorded in writing. There should have been a review of the risk assessment when the fire alarm stopped working and when the emergency lighting stopped working.
8. Breach three concerned procedures for serious and imminent danger such as evacuation drills. The last documented fire drill had taken place in January 2014. In June 2014 there had been a genuine emergency evacuation of the hotel when the alarm went off. This was due to a power failure rather than any fire. The emergency lights came on momentarily and then failed, leaving the hotel in complete darkness. Staff evacuated guests as best they could. A staff member, Mr Rehman, who was the business development manager, raised concerns with the appellant shortly afterwards. The appellant told him "Crown Fire Services are working on it". Mr Rehman confirmed to investigators that he had never been trained on how to evacuate the hotel and it had never been confirmed with him that he knew how to conduct a safe evacuation.
9. Breach four concerned maintenance. In relation to the emergency lighting that failed in June 2014 the appellant handed over documentation which showed that the last test of the emergency lighting system had been in July 2012. The appellant told the inspector that he had never tested the emergency lighting. He would have been on notice in June 2014 that there was a problem but no steps had been taken to remedy the faults. There were no tests of the fire alarm system between August 2013 and March 2014. Staff members working at the hotel during that period confirmed this. Tests that the alarm was audible should have been carried out weekly.
10. Breach five concerned training about fire safety measures. There was a specific requirement to train employees when they are first employed and if there are any significant changes in circumstances during the course of their employment. Statements obtained from staff members revealed they had not been trained in the operation of the fire alarm or how to ensure a safe evacuation of the hotel. No training was provided, when it became clear that the fire alarm was inoperative, nor any alternative fire safety precautions. One staff member did suggest there had been a training drill in February or March 2014. Some staff may have received general fire training with previous employers but the requirements and regulations are that the staff members should be trained about the specific fire safety precautions and procedures in place at the Cutlers Hotel.
11. In interview the appellant said he had reviewed the fire risk assessments since 2010 but had not recorded the reviews as required. It was his view that nothing had changed and therefore nothing needed updating. He accepted the fire alarm panel had become so worn and out of date that it had to be replaced. He said upon learning that the fire alarm was not working properly he had introduced extra patrols at the hotel to ensure greater vigilance. He later accepted there were problems with the volume and audibility of the working firearm alarms and there were more things he could have done. He made no comment to questions about the emergency lighting.
12. The learned Recorder passing sentence said that the appellant was aged 42, and fell to be sentenced for five offences relating to fire safety regulation. There were no guidelines applicable. The court was assisted by two cases provided by the prosecution. The offending took place over a three year period. The potential consequences of the offending could have been catastrophic but the court bore in mind that no injury was caused to anyone. The appellant was the manager of a 45 room hotel. As a result of his failure to comply with requirements of fire safety regulations he placed residents and staff at a significant risk of serious injury or death in case of fire. The investigation began on 12th September 2014 when a concerned member of the public overheard staff at the hotel discussing that neither the fire alarm nor the emergency lighting were working. An inspector first visited the premises that day.
13. The learned Recorder then rehearsed the five particular breaches, the evidence in relation to each of the breaches and the particular risks to which we have already adverted. He then went on to say that when interviewed the appellant made partial admissions. It was accepted he had no assets having been made bankrupt. There were no sentencing guidelines. The court was assisted by two cases but not bound by them. It was submitted that culpability was very high because the appellant had notice that the fire alarm and emergency lighting were not working for months before fire safety inspectors attended. Staff knew it and had raised concerns. The risk of harm was death or serious injury. Account had to be taken of the cumulative failing including the alarm not working, no emergency lighting and no proper evacuation procedures.
14. The aggravating features were the large numbers of staff and paying guests exposed to serious risk and a failure to heed clear warnings of staff and independent advisers. The court bore in mind the mitigation it had heard and read. Defence counsel said the appellant did not deliberately set out to create a risk and he had relied on his general manager, but the "buck stopped" with the appellant.
15. The court bore in mind there was no breach of an enforcement notice but set against that were the clear warnings he had been given by the independent advisers and staff. He would generously perhaps be given full credit for his guilty pleas. Personal mitigation was borne in mind. The court had seen the character references and pre-sentence report and noted the difficulties he had in his family life and the care he provided for his young son. The court concluded that the offences and combination of them were so serious that only an immediate custodial sentence was justified. Having regard to the aggravating and mitigating features, the least sentence would have been

12 months after trial. After credit for plea and bearing in mind totality he was sentenced to eight months' imprisonment for each offence, all concurrent.

16. The grounds of appeal are that the imposition of an immediate sentence of imprisonment was manifestly excessive or was too great for the following reasons:

A. There was no or insufficient evidence that the appellant had deliberately sought to create risk or that he had flagrantly disregarded the law.

B. There was evidence he had sought to address certain of the identified failings.

C. Saying the offending occurred over a three year period made insufficient distinction between the various offences, some of which covered much shorter periods of time.

D. He pleaded guilty in the magistrates' court and so had demonstrated genuine remorse.

E. He was of previous good character.

17. The single judge granted leave saying that although the Sentencing Council Definitive Guideline relating to health and safety offences does not apply to these offences, it may be of some assistance in identifying the matters which are relevant to the sentencing exercise in this case. In the light of those matters, the available mitigation and in the absence of previous authoritative decisions relating to these types of offences, the grounds are just arguable.
18. Mr Smith QC has this morning argued those grounds before us. He has done so in submissions which we have found attractive, focused and cogent.
19. Before turning to deal with those submissions we wish to deal with some matters of principle first. In relation to the citing of cases by reference to newspaper articles and the like, as happened here, this court has dealt with this issue in Thelwall [2016] EWCA Crim 1755. Giving the judgment of the court, the Lord Chief Justice said at paragraph 23:

"Secondly, where a case comes before a sentencing judge, it is important that matters follow the same course. As we observed in the course of argument, the judge said:

'... before dealing with sentence, I have been referred in the defence bundle and in submissions this morning to a number of online articles where suspended sentences of imprisonment have been imposed on individual defendants for breaches of health and safety legislation. These emanate from the HSE themselves, the CPS website, the BBC news webpage and the Express and Star newspaper webpage. They are all online articles or summaries and not reports of cases. None purports to be full transcripts of court proceedings and the sentencing remarks of judges who imposed those sentences and may therefore be quite inaccurate. All are first instance decisions. To my mind when sentencing in a case like this, it is important to remember, as I have said, that every case is fact specific.'

It is right to point out that these matters were not put before the judge by the Health and Safety Executive. We wish to make clear that it is impermissible to adduce reports of that kind before a judge. The judge has the guideline. His duty is to apply the guideline and to make it clear that that is what he is doing. It will, we hope, make it much easier for judges and shorten the time that such cases take if the practice to which we have referred ceases forthwith."

20. That was, of course, said in relation to a case where there was a definitive guideline from the Sentencing Council. In this case there was not. But we would repeat that this practice of providing the court with newspaper and other reports of cases must stop. The reason is that not only are they not guideline cases but they are not authorised reports of the case. Furthermore, they are not full reports of the case. Material matters that were in the mind of the sentencing judge may well be absent and the court may be led into error in thinking it has the full picture of the case when it does not.
21. When there are no guidelines from the Sentencing Council, the court has to apply the basic principles of sentencing. The starting point is Part 12 of the Criminal Justice Act 2003. Section 142 sets out the purpose of sentencing. Section 143 provides for how the court will determine the seriousness of an offence, in particular having regard to the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. That section also provides for how previous convictions and the commission of offences on bail should be treated. It is against those statutory provisions that the facts and circumstances of the offence and the offender must be considered in determining the appropriate sentence.
22. What of guidelines provided by the Sentencing Council for like offences? In the instant case the learned Recorder referred to the guidelines for Health and Safety Offences. Although not directly referable to these offences, they do provide a useful check for considering whether a sentence arrived at by applying the statutory material to which we have referred has produced a sentence which is either unduly lenient or manifestly excessive.
23. We turn then to consider the matters raised in the course of Mr Smith's submissions this morning which were indeed focused upon those issues of culpability, harm and the like.
24. Firstly, culpability. In this case the appellant's culpability was high. Over a long period of time he had neglected to perform the basic safety checks. He had failed to respond in any adequate way to what he knew to be failures in the systems. He was told what needed to be done and showed no urgency in having wrongs put right. Mr Smith argues that this was not a case that would be regarded as very high culpability in the context of health and safety offences. Of course the reference by the learned Recorder to a "very high level" was his referring to the submission made by the prosecution. He himself appears to have made no specific findings as to the level in the guideline. We note however that the starting point which he took was a starting point of 12 months which is the appropriate level for a high culpability level.
25. Mr Smith submitted that this was not a case of an intentional breach or a flagrant disregard of the regulations. He reminded us that there was no ignoring of any prohibition or enforcement notice in this case.
26. We agree with him that this was a high culpability case and it was high culpability for the reasons we described it as such.
27. In relation to harm, Mr Smith submits that factually this was not a high level of harm. He reminds us of what actually happened when an evacuation became necessary. However this was an hotel with 45 bedrooms and in addition there were staff working there. The harm that that level of culpability of the appellant "might foreseeably have caused" was very serious indeed. Fire in multi-occupancy buildings always carries the risk of death and of multiple deaths. Absent death there is always a very high risk of serious injury caused either through smoke inhalation or through contact with heat. The potential harm was therefore at the very highest level.
28. In relation to aggravating factors there are none that the guidelines refer to, though the learned Recorder did itemise a number of factors which he regarded as aggravating in the circumstances of the case.
29. In relation to mitigating factors, there were the mitigating factors to which the learned Recorder referred and of which we have been reminded this morning, namely the remorse of the appellant, his hitherto good character, his family circumstances and his care for his son. Mr Smith says that all these matters must be taken together and balanced one against the other.
30. In our judgment, a sentence of 12 months after a trial is one that is wholly appropriate for offences of this nature taken together as they were by the sentencing judge. It is, in our judgment, entirely appropriate in a case like this to aggregate the offences together and to take a global view of culpability and potential harm and to pass equal and concurrent sentences on all offences, rather than to try and assess relative lengths for any differing degrees of each separate potential harm. That would be a fruitless exercise with no benefits that we can discern.
31. As we observed earlier, although the health and safety guideline is not directly relevant, it can usefully be used as a check against a sentence arrived at in the way described above. The appropriate guideline would be that at page 17. The learned Recorder went through exactly the right exercise in relation to that guideline and he rightly concluded that this would be a case of high culpability and Level A harm (the risk of death) and so a starting point of 12 months would be appropriate. He allowed a full one-third discount for the guilty plea. No complaint is made about that nor could it be.
32. Mr Smith then urges us to say that this is a sentence which could have been suspended. In our judgment this is a case where the levels of culpability and harm do not allow for suspension of the sentence. Fire precautions are there and need to be obeyed and breaches of those precautions are very serious indeed. The learned Recorder of course had a discretion as to whether he should suspend such a sentence. In the circumstances and given the seriousness of this case we find nothing wrong in his decision not to suspend the sentence, nor do we consider that the circumstances today require us to make any different decision ourselves.
33. In all these circumstances, we are not persuaded there is anything wrong in principle with this sentence or that it is manifestly excessive. This appeal against sentence is dismissed.