Jersey Unreported Judgments

 2001/99

ROYAL COURT

(Samedi Division)

 

4th May 2001

 

The Attorney General

-v-

Michael Challenger

 

First Indictment

1 count of:

Contravening Article10 (1) (c), (e), (g), (h) and (k) of the Residential Homes (General Provisions) (Jersey) Order, 1995 by failing: (a)           to provide necessary facilities for physically handicapped residents; (b)           to take adequate precautions against risk of accidents; (c)           to take adequate precautions against risk of fire and accidents; (d)           to provide adequate floor covering in resident's rooms.

 

Second Indictment

1 count of:

Contravening Article 6 (1) of the Residential Homes (General Provisions) (Jersey) Order, 1995 by failing: (a)   to keep a record of scale of charges (b)   to keep records of all money and other valuables deposited by residents

 

Age:     44

 

Plea:    Facts admitted.

 

Details of Offence:

Count 1 - Defendant registered to carry on the business of running residential care home for elderly persons, registered for 19 persons, but in fact catering for no more than 15 persons following an agreement with the Registered Homes Inspector.  Following numerous inspections which took place between 16th April 1998 and 19th November 2000, the defendant's attention was drawn to shortfalls in the physical conditions of the home which required attention in order to comply with the minimum standards under the 1995 Order.  Although some problems were rectified following inspections, others were not and on 23rd October 2000 the Health and Social Services Committee issued a notice requiring the defendant to comply with a number of requirements relating to -

(a)        provision of operational stair lifts from 1st to 2nd floor and from 2nd floor to top floor;

(b)        to fit passenger restraints to stair lifts;

(c)        to either fit guards to electric heaters or fit cool touch heaters to prevent risk of accident as surface temperature of heaters were unacceptably high (maximum surface temperature ought  not to exceed 43 degrees centigrade, surface temperature of heaters ranged from 45.7 to 84.2 degrees centigrade):

(d)        provide suitable floor covering to bedroom 11;

(e)        to provide from an independent and approved electrical contractor a certificate of safety regarding the electrical wiring within the Home.

 

Count 2 - A further Notice, dated 29th November 2000, was issued by the Committee to the Defendant in order to compel him to make available a record of the scale of charges from time to time applicable at the Home and records of money and other valuables deposited by residents for safe keeping, or received on residents behalf by the Home.  Although the Defendant produced some records for some of the residents, he did not do so for others. 

 

In relation to the failure to comply with the first notice, the Crown drew attention to the Defendant's repeated failure to abide by informal written notices given by the Committee and the Defendant's confirmed failure to comply with the formal notice issued on 23rd October 2000.    

 

Details of Mitigation:

Infractions admitted.  Defence counsel submitted that it was not a case of wilful disregard of health ad safety of residents.  Defendant had invested £100,000 in the business since 1990.  Following divorce from his wife, found himself in financial difficulties and needed to employ a full-time matron (to replace his wife).  Unable to attract a sufficient number of residents.  No previous convictions for this type of offence.  References handed up setting out his charitable works.  Remorse expressed to the Court.  This case not the worst kind of offence imaginable and infractions admitted. 

 

Previous Convictions:

None relevant, but previous offence for dishonesty  (in 1987).

 

Conclusions:

 

First indictment:	£1,800 fine or three months imprisonment in default of payment.
Second Indictment:	£1,500 fine or two months imprisonment in default of payment. Costs: £1,500

 

 

Sentence and Observations of Court:

 

First Indictment:	£1,500 or three months imprisonment in default of payment.
Second Indictment:	£1,250 fine or two months imprisonment in default of payment Costs: £1,500, three months to pay.

 

In view of the fact that the maximum fine is reserved for most serious offence imaginable, on a not guilty plea, Crown's conclusions reduced slightly.

3 months to pay. Court invites Health and Social Services Committee to give urgent consideration to increasing the level of fines which might be imposed under the Order.

 

P. Matthews Esq, Crown Advocate.

Advocate J. Michel for the accused.

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        The provisions of the Residential Homes (General Provisions) (Jersey) Order, 1995, are intended to ensure that residential homes for old people are run properly and that they are in a fit and safe condition. Old people can be vulnerable and it is, therefore, of the utmost importance that the requirements of the Order are complied with by those who run residential homes.

2.        Mr Challenger, you were given ample opportunity to deal with the many defects which are the subject of these charges. Some of the matters that were drawn to your attention go back as long ago as 1998.  After showing very considerable forbearance the Committee eventually served you with notices requiring you to undertake the works, but you have still failed to comply with most of them.  We think that the Crown was correct to describe your conduct as being a blatant disregard shown for the health, safety and general well being of residents.

3.        In mitigation, it is pointed out that you pleaded guilty at an early stage. It is said that you had financial problems, which we accept, and we have also had a number of references as to your character generally and the charitable activities which you undertake. These clearly all go to your credit.

4.        Nevertheless, given a free hand, the Court would consider the fines moved for as being by no means excessive. On the contrary, one can envisage higher fines being justified for this sort of conduct.  But we face the fact that the maximum fine fixed by the legislation is £2,000 per charge.  It must be the case that the maximum fine is reserved for the worst type of case and where there has been a not guilty plea.  We accept that, on this occasion, there are several different allegations against you of different types of conduct and perhaps they might have formed the basis of more than two charges, but the fact remains that there are only two and we have to sentence on that basis.

5.        In the circumstances we have come to the reluctant conclusion that the sum of £1,800 on the first charge cannot be justified, given that the maximum fine is £2,000. The fine, therefore, will be reduced to £1,500 on that charge and there will be a corresponding reduction in charge two, which is less serious, to £1,250.

6.        We do ask the committee to give urgent consideration to increasing the maximum fines.  We consider that a maximum of £2,000 is wholly inadequate to reflect the importance of ensuring that homes for old people are kept in a safe and proper condition.

7.        So, in summary, we impose a fine of £1,500 on the first charge or three months imprisonment in default; £1,250 on the second charge or two months imprisonment in default, consecutive. We order costs in the sum of £1,500 and we give you three months to pay and you can consider yourself fortunate. 

 

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