Butt [2018] EWCA Crim 1617
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R v Butt [2018] EWCA Crim 1617 concerned an appeal by Mr Mehmood Butt against sentence imposed at Southwark Crown Court by His Honour Judge Robbins on 17 November 2017. The Lord Chief Justice, Mrs Justice Nicola Davies and Mr Justice Goss allowed the appeal in part, reducing the fine imposed but otherwise upholding the sentence.
Mr Butt had pleaded guilty to four offences contrary to the Regulatory Reform (Fire Safety) Order 2005. Three counts charged him with failing to take reasonable general fire precautions to ensure that premises were safe, contrary to articles 4(1)(c), 8(1)(b) and 32(1)(a). A fourth count charged him with failing to equip premises appropriately with firefighting equipment and with fire detectors and alarms, contrary to articles 13(1)(a) and 32(1)(a). The maximum sentence for each offence was two years’ imprisonment and an unlimited fine. The judge imposed a suspended sentence of six months’ imprisonment on each count concurrent, suspended for 18 months, together with a six-month tagged curfew between 21.00 and 06.00 hours. In addition he imposed a fine of £250,000 apportioned between the counts and costs of £14,210.
The offences arose out of Mr Butt’s ownership of 283 Cambridge Heath Road, London E2, a five-floor end of terrace building. Mr Butt had owned the building since 2005 and initially let rooms in it as a house in multiple occupation. In 2009 he decided to convert it into a thirteen-room bed and breakfast or boutique hotel. He engaged Mr Munawar Hussain, trading as Future Visions, to design and carry out the project including obtaining planning permission and necessary consents. Planning permission was initially refused in November 2009 on various grounds, including that the design provided for an enclosed rear fire escape. Mr Butt’s scheme involved removing the internal stairs and installing a lift. A further application for planning permission in November 2011 with a full plans application for building regulation approval included an exposed rear fire escape. Building regulations approval was refused because the proposed fire escape was not safe. Planning permission was finally granted on 26 April 2012. Work began some time afterwards and came to the attention of the local authority in February 2013. Work had commenced before building regulations approval had been given.
A building control surveyor from the local authority, Mr Andrew Bower, visited the site on 21 February 2013 and spoke to Mr Hussain, expressing his concerns. A fresh application for building regulations approval was refused a few days later because of the unsatisfactory proposal for removing the internal staircase and adding a fire escape. On 2 May 2013 Mr Bower visited again and met Mr Hussain and the appellant at a nearby hotel before going to the site. He explained that enclosing the rear stair was likely to require planning permission, that the building regulations application had been rejected, and that work continued at the owner’s risk. Although Mr Butt, whose first language is not English, did not dispute being at that meeting, he did not accept that he appreciated the fundamental fire safety problems that his project was generating. His case was that he left all the detail to Mr Hussain and to his own son Zain. Mr Bower visited again in December 2013 and discussed matters with Zain when he saw doors inappropriately hung to obstruct the stairway. The only route of escape was across property not owned by Mr Butt in respect of which he had no right of way.
Mr Bower visited once more on 4 March 2014. Carpets were being laid and he was troubled that the business was about to open in a dangerous condition. He had been in touch with the fire brigade and made contact with Ms Samantha Bennett, the relevant inspecting officer, to express his concerns. Ms Bennett visited the premises on 25 March 2014 and saw Mr Butt and Mr Hussain. The refurbishment was almost complete but the rooms did not appear to be occupied. Ms Bennett identified several areas of concern to Mr Butt. The new lift shaft was not fire resistant. The external fire escape was not fire resistant in that the windows overlooking it were able to be opened, were within 1.8 metres of the stairway, and were not themselves fire resistant. The enclosed yard at the back of the premises was not a place of safety both because of its physical nature and because Mr Butt had no right to use it. The external door to the yard was locked. The fire alarm system was not operational. It was made clear to Mr Butt that under no circumstances should anyone be allowed to use rooms other than on the ground floor until all the problems were rectified. The means of escape from the upper floors and from the basement were not safe. Mr Butt accepted this. Shortly afterwards Mr Bower wrote to Mr Butt setting out his concerns. On 22 April 2014 an enforcement notice was served on Mr Butt by the Fire Authority requiring him to remedy the defects, to expire on 15 July 2014.
Ms Bennett returned three weeks before the enforcement notice was due to expire and was met and accompanied by Mr Butt. She found that only one minor remedial step had been taken. The ground floor was occupied by people Mr Butt said worked for his building contractors. Ms Bennett discovered that an upstairs room was occupied by a woman. She reiterated to Mr Butt that there were no suitable means of escape from the upper floors or from the basement and emphasised that only the ground floor could be occupied. Mr Butt assured her that only the ground floor would be used and that at the time nobody was living there because of concerns about fire safety. She said she would return in about a week.
On 2 July 2014 Ms Bennett returned with colleagues to make an inspection. They were joined by Mr Butt and his son. None of the problems had been resolved. They were compounded by the fact that the fire alarm system, now operational, was inadequate because it was inaudible or not sufficiently audible in parts of the building. The most serious finding was that, contrary to the personal assurances given by Mr Butt, two rooms on the upper floors and one in the basement were clearly occupied. A van containing propane cylinders was parked adjacent to the external staircase. Because of the enclosed nature of the land at the base of the staircase, had it been used people would have been trapped close to the building from which they had escaped. The doors leading to the external staircase were not self-closing and the problem with the windows persisted. The authority formed the view that each of the deficiencies gave rise independently to a risk of death or serious injury to occupants of the premises, an ingredient of each offence. The counts on the indictment reflected the state of the premises as seen on 2 July 2014.
Count two concerned the risk created by the external fire escape which, following removal of the internal staircase, was the only means of escape from the upper floors in the event of fire. The fire escape was not fire resistant and thus unsuitable. Count three concerned the risk created by the lift shaft, which was not fire resistant and would have failed to prevent the spread of fire and smoke. Count five concerned the risk resulting from there being no suitable internal means of escape from the upper floors. Count seven concerned the inadequacy of the fire alarm system.
There was further material history to the offending. When the building was a house in multiple occupation, serious fire safety deficiencies had been noted in November 2007 which resulted in the service of an enforcement notice. Further action was taken in November 2010 when an inspection report led to a notice of deficiencies being served upon Mr Butt. In May 2012 another enforcement notice was served after there had been a fire. Mr Butt was the responsible person for the first two enforcement actions; in respect of the third his son was noted as the responsible person. The prosecution relied upon Mr Butt’s poor record in relation to fire safety matters as an aggravating feature together with his ignoring warnings from both Ms Bennett and Mr Bower.
Mr Butt’s basis of plea emphasised that he had relied upon Mr Hussain to make the alterations in compliance with all necessary regulations. He thought that all work was proceeding in accordance with regulations until the visit on 25 March 2014, although he was aware that substantial delays in the project were the result of difficulties with consents including fire safety concerns. In summer 2013 his relationship with Mr Hussain deteriorated as a result of delays due to a redesign required by Mr Bower. After the events forming the basis of the counts to which he pleaded guilty, he parted company with Mr Hussain and engaged different builders to complete the project in compliance with building regulations and fire safety legislation. The whole project went some £100,000 over budget and he was unable to open the premises as fully functional for another year. He accepted that he should have taken active steps to ensure that the rooms were not being occupied. His basis of plea did not say that he was unaware of the rooms being occupied after 25 March. Instead he suggested that his son was responsible for much of the day to day management and accepted that he should have taken steps to ensure that rooms save for the ground floor were not being occupied.
The pre-sentence report recorded Mr Butt describing multiple health complaints and suggesting that he was taking medication which affected his ability in day to day life as he was unable to focus and concentrate for long periods due to pain and fatigue. He explained that he was drinking to excess and on anti-depressants. A consultant physician’s report dated 5 June 2013 confirmed that Mr Butt had suffered significant medical problems which were under control and that he was now very active, going to the gym daily and doing weights and running. It provided no support for the claimed problems described to the author of the pre-sentence report. A further report from Mr Butt’s general practitioner produced for the sentencing hearing also provided no support for any particular problems in 2014. By 2015 Mr Butt was suffering from low mood and anxiety. Miss Laura Phillips, representing Mr Butt, suggested that his medical problems affected his ability at the material time to concentrate on what was happening at the premises due to pain, fatigue and depression. The court held that this was unsupported by the medical evidence and discounted it.
Miss Phillips relied in mitigation upon Mr Butt’s lack of previous convictions, his guilty plea, and that nobody was actually hurt by the failures. The judge concluded that the breaches were serious and that the custody threshold was crossed. A suspended sentence, curfew and fine met the justice of the case.
On appeal Miss Phillips submitted that the overall sentence did not fairly reflect the criminality as set out in the prosecution note for sentence and basis of plea and did not give sufficient weight to the mitigation put forward. She submitted that the judge should not have imposed a fine of £250,000 in addition to a suspended sentence with curfew, or that if a fine was appropriate it should have been substantially lower. She also submitted that the judge made no positive assessment of whether the prosecution costs were actually and reasonably incurred and that they were too high.
The court set out the approach to sentencing in fire safety cases. There are no sentencing guidelines applicable to fire safety cases. In R v New Look Retailers Ltd [2011] 1 Cr App R (S) 57 the Court of Appeal applied to prosecutions under the Order the principles earlier articulated in R v F Howe & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37 for cases prosecuted under the Health and Safety at Work etc Act 1974. The court held that a similar approach to the assessment of harm and culpability would be appropriate and that aggravating and mitigating factors which weighed in health and safety cases would apply in sentencing for breach of the Order. A feature of the offences under the Order with which this appeal was concerned was that the breach must give rise to a risk of death or serious injury. Fire is an especially potent hazard. The products of combustion are capable of overcoming and killing victims quickly or doing them serious harm. Fire is notoriously unpredictable and can spread far from its seat. It is for these reasons that serious breaches of fire safety regulations have been met with severe penalties.
The court referred to three previous decisions. R v Salim Patel [2015] EWCA Crim 2239 concerned guilty pleas to seven offences under the Order, including failure to comply with an enforcement notice, relating to an hotel. There was a bad history of compliance with fire safety legislation. The offender received a suspended sentence and a fine of £200,000. R v Sandhu [2017] EWCA Crim 908 concerned another hotel and serious breaches of the Order. An immediate custodial sentence was upheld. R v Takhar [2014] EWCA Crim 1619 also concerned an hotel with seriously defective fire safety precautions. Eight breaches of the Order attracted an immediate custodial sentence.
The court noted that there is now a guideline for health and safety offences but it does not apply to offences committed contrary to the Order. The Sentencing Council considered whether it should encompass offences contrary to the Order but decided against. In its response to the consultation on the draft guideline in November 2015 it said that the Council felt that applying the factors in the guidelines to offences involving risk of fire had the potential for distorting sentence levels. The court held that the context of that observation was that the distortion of sentencing levels might be upwards. In Sandhu Judge Collier QC observed that in fire safety cases the guideline might provide a useful check for considering whether a sentence arrived at had produced a sentence which was either unduly lenient or manifestly excessive. That comment had to be seen in the context just mentioned. The structure of the guideline in identifying the steps involved in determining the seriousness of the offending might usefully be followed in cases of this sort.
The court summarised the approach in the guideline. At step one the court must determine the offence category by deciding culpability first. There are four levels of culpability ranging from deliberate breach of or flagrant disregard for the law at one end to offender did not fall far short of the appropriate standard at the other. Consideration of harm follows in the context that the offences are ones of creating a risk of harm. The guideline requires the court to determine both the seriousness of the harm risked and the likelihood of that harm arising. Having identified the appropriate level of harm, the guideline requires the court to consider whether the offence exposed a number of workers or members of the public to risk and whether the offence was a significant cause of actual harm.
The court held that in prosecutions for a breach of the Order the harm risked will be at the highest level, level A in the guideline, because of the risk of death or serious injury. The level of culpability will vary depending upon the circumstances of the offending. The likelihood of harm occurring depends upon the chances of fire breaking out. In most cases there will be no evidence of special risk of a fire breaking out. The law imposes a high standard for precautions to guard against the risk of fire. That is not only because of the very serious consequences that can flow from fire but also because it is so unpredictable how and when it will start. The severe penalties evident in cases of breach of the Order do not depend upon such enhanced risk. Its presence would be a seriously aggravating factor. The two factors referred to in the guideline, risk to many and actual harm, are
R v New Look Retailers Ltd [2011] 1 Cr.App.R. (S) 57
Patel [2015] EWCA Crim 2239
Sandhu [2017] EWCA Crim 908; [2017] 4 W.L.R. 160, C.A.
Takhar [2014] EWCA Crim 1619
R (Her Majesty’s Inspectors of Health and Safety) v Whirlpool UK Appliances Ltd [2017] EWCA Crim 2186