St Michael’s Hospice [2019] EWCA Crim 161

R v St Michael’s Hospice Hastings [2019] EWCA Crim 161 concerned a renewed application for leave to appeal against sentence imposed upon a registered charity following conviction for fire safety offences; the Court of Appeal (Lord Justice Irwin, Mrs Justice Cutts DBE, and His Honour Judge Paul Thomas QC sitting as a judge of the CACD) refused the application and upheld the sentence.

The applicant, St Michael’s Hospice Hastings, a registered charity, pleaded guilty on 6 March 2018 at Lewes Crown Court to two offences of failure to take general fire precautions contrary to Articles 8(1)(a) and 32(1)(a) of the Regulatory Reform (Fire Safety) Order 2005. The first count related to failure on 11 July 2015 to take such general fire precautions as would ensure, so far as reasonably practicable, the safety of its employees, placing them at risk of death or serious injury in case of fire. The second count related to identical failings in respect of persons who were not employees, plainly including patients resident at the hospice. On 28 March 2018 the applicant was sentenced to a total fine of £250,000, comprising £80,000 on count one and £170,000 on count two consecutively, with three years allowed for payment.

At about 12.40 am on 11 July 2015 a serious fire occurred at St Michael’s Hospice in St Leonards on Sea. The fire was ignited on the male ward on the ground floor and spread relatively quickly. It is thought that it may have been started deliberately by a male patient. Nine staff were on duty and there were 25 residents within the building: nine on the ground floor and eight on each of the first and second floors. The patients had a range of mobility issues and many were sedated to assist sleep. Staff worked tirelessly to evacuate residents, initially from the sub‑compartment of origin and then from the whole ground floor, and ultimately a decision was taken to evacuate the entire premises. Staff were unable alone to evacuate all residents and some had to be rescued from the main fire compartment on the ground floor by fire fighters wearing breathing apparatus. It became clear that staff had received no adequate training in evacuating patients with mobility difficulties. Beds were too wide to pass through doors, and there was a lack of appropriate equipment. Some residents were taken downstairs on the laps of staff, others were carried in blankets, and one was lifted down in a normal chair without safety restraints and fell out during the descent. Locked exit doors could not be readily opened by staff, who had to leave some patients in the smoke‑filled premises. Holes within the ceiling, concealed by false ceilings, allowed smoke and heat to spread quickly to the upper floors. Ten residents worst affected by the fire were taken to hospital and others were taken to a nearby residential home. Within 24 hours of the start of the fire three residents had died. Subsequent post‑mortem examinations revealed that the fire was a causal factor in the deaths of two of them.

The investigation consequent upon the fire revealed the following. In January 2014 the Fire Services had written to every hospice in the country highlighting nationwide concerns about risks to vulnerable residents with limited mobility in the event of fire and highlighting the need for exit doors to be easy to open and sufficient numbers of staff at night to ensure safe evacuation. The applicant was therefore on notice. On the night of the fire, exit doors in the hospice were locked or unusable. The main fire exit on the ground floor was locked and could not be opened by staff. A further exit was locked and was too narrow to allow evacuation because the beds could not fit through. Fire officers found holes in the ceiling and walls which were not immediately visible owing to false ceilings but were obvious once one looked beneath them. Further holes allowing access for piping and electrical wires to all rooms were insufficiently filled in, creating a risk of fire and smoke spreading quickly throughout the building. Some doors were not fitted with smoke seals. The holes had been identified as a risk in a Fire Hazard Report written by a specialist fire consultant, Mr Scott Yorden, dated 10 March 2015, but the risk had not been acted upon. It appeared that the hospice was seeking to obtain funds in order to act upon the Fire Hazard Report, but the hospice had reserve funds which could have been used for this purpose and then reimbursed through a fund‑raising scheme. There were insufficient numbers of staff on duty to evacuate all of the residents. A Fire Report dated 13 August 2014, written by an employee of the applicant, had recommended purchasing and using evacuation chairs as the best solution to what was then recognised as the immediate problem of moving patients with mobility issues. The author identified this as only a partial solution and indicated that another member of staff was working on a more detailed procedure, including the order in which to evacuate patients and what to do with them once evacuated. No such chairs had been bought and no plan had been worked out. Staff had never been trained in, nor carried out, any real evacuation. They had not before the fire considered how they would get patients down the stairs in the event of a fire. They did not have the right equipment to do so. Doorstops were being used to keep doors open which should have been shut when the fire began. The risk assessment held by the applicant was inadequate and lacking in detail and did not identify the failings already mentioned. There was defective fire zoning delineation and most of the breaches had persisted for some time.

The applicant’s basis of plea emphasised that this was not a case where there was no fire risk assessment in place. In 2006, almost immediately after the Fire Safety Order came into force, the hospice obtained a fire risk assessment. It was acknowledged that at this time the hospice only occupied the ground floor of the premises, which were thus less complex than at the time of the fire. Thereafter the hospice relied upon a fire risk assessment prepared in 2013 by employees of the applicant who, with the benefit of hindsight, were insufficiently trained or experienced in fire safety to provide such an assessment. The applicant accepted that the fire‑resistant construction of the premises was breached in various places and that this had been brought to its attention in March 2015. Plans were in place to install sprinklers in September 2015, which would have substantially mitigated the risk. It was accepted within the basis of plea that the general fire precautions for the whole premises were inadequate. There was a fire safety and evacuation plan in existence but the applicant accepted that it fell short of all that was reasonably practicable to ensure a safe means of escape. This included an over‑reliance on one staircase as the means of escape, with other doors not on the designated escape route locked, and inadequate evacuation equipment and training, albeit there had been some. The applicant maintained that the risk of arson by a patient could not have been reasonably foreseen.

There are no sentencing guidelines applicable to fire safety cases. With the agreement of the parties the judge, in sentencing the applicant, followed the guidance of the Court of Appeal in R v Sandhu [2017] EWCA Crim 908 and assessed questions of culpability and harm by reference to the Sentencing Council Guideline for Health and Safety Offences. As the court observed in that case at paragraph 22, whilst they are not directly referable to fire cases, they do provide a useful check for considering whether a sentence is either unduly lenient or manifestly excessive. The judge reminded herself that the purpose of sentencing was not to mark the loss of lives subsequent to the fire but to sentence the applicant for the breaches of the fire regulations. She recognised that the hospice was a key provider of palliative care and that there would be an inevitable impact on the provision of its services for the local community by reason of its conviction and sentence. She concluded that the applicant’s level of culpability was high and that it fell far short of the appropriate standard. The responsibility for dealing with fire risks lay firmly with the hospice, which had failed to put into place obvious and recognised measures. It had failed to act on risks identified to it which it allowed to persist over a long period. In relation to harm, the judge observed that in its guilty pleas the applicant accepted that its failures placed their employees and residents at risk of death or serious injury. She found that the cumulative effect of its deficiencies in the event of a fire resulted in a high likelihood of harm. She found that the offences were aggravated by the number of employees and residents who were at risk of serious harm, approximately 40 people in total, and by the fact that the applicant’s breaches were a significant cause of actual harm. These factors warranted an uplift in the starting point. In mitigation the judge took into account the hospice’s previous good character and its status as a charity. She recognised that it offered a much valued service within the community and was reliant on donations largely from the families of those it had cared for. She accepted that significant steps had been taken after the fire to ensure that fire safety was given the priority it should always have had. In reaching the appropriate level of fine, the judge treated the applicant as a small business in terms of turnover. She reminded herself of the need for the level of the fine to reflect the extent to which the applicant fell below the required standard and that it must be sufficiently substantial to have a real economic impact which would bring home to management the need to comply with regulations. She observed that it was obvious that any fine for a charity such as a hospice would impact on its ability to use its resources to offer its current level of care. However, in her view, it would not be an acceptable message to such institutions that exceptional palliative care could dilute the requirements to have robust fire safety policies in place. The judge reached a starting point of £425,000. She reduced this to £400,000 for the mitigation and reduced the figure by a further 30 per cent to reflect the applicant’s charitable status. She afforded the applicant 25 per cent credit for its guilty pleas, bringing the sum to £210,000 for a single offence. As there were two offences relating to different groups of people, she came to a final figure of £250,000, which she apportioned between the counts. She afforded the applicant three years within which to pay the fine.

On behalf of the applicant, Mr Green accepted that culpability in the case was high and that the deaths of two patients were an aggravating factor, as was the fact that others were exposed to risk. The applicant sought leave to appeal against sentence on two grounds. First, Mr Green submitted that the judge adopted too high a starting point because she wrongly assessed the likelihood of harm as high. He submitted that the true likelihood of harm from breaches of the Fire Safety Order in this case was low because the risk of a fire at the hospice was low. It was submitted that the judge conflated the assessment of the likelihood of harm with the level of harm that might follow in the event of a fire. It was his submission that the applicant should have been sentenced on the basis of a medium likelihood, combined with level A harm, and that this would have reduced the starting point. Secondly, Mr Green submitted that the judge gave insufficient weight to the applicant’s mitigation, in particular to the fact that the applicant was a charity which must pay the fine from reserves made up of charitable donations from the public. Further mitigation could be found in the lack of previous convictions, the good health and safety and fire safety record of the hospice, its co‑operation with the Fire Services, and the full remediation package.

The Court rejected the submission that there was a low risk of a fire breaking out in a hospice as missing the point. As was made clear by the Court in R v Butt [2018] EWCA Crim 1617, a decision after the sentence hearing in this case, in most prosecutions for a breach of the Fire Safety Order there will be no evidence of a special risk of a fire breaking out, but nonetheless the law imposes a high standard for precautions to guard against the risk of fire. This is because of the very serious consequences that can flow from fire and also because it is so unpredictable how and when it will start. Severe penalties for the offence do not depend on an enhanced likelihood of fire, although of course if there were such a risk it would prove a serious aggravating factor. The question was not how the judge came to her starting point but whether it could be said in all the circumstances of the case to be manifestly excessive. There were serious breaches of the Fire Safety Order. As the judge observed, had there been a basic level of fire training incorporated into the routine of the hospice the failures to take proper fire precautions would have been obvious and could have been rectified simply and at little cost. The applicant’s failures placed extremely vulnerable people at significant risk. The applicant’s deficiencies, some of which had been long‑standing, were ruthlessly exposed when fire did break out in July 2015. Actual harm was caused to residents of the hospice. The Court found itself unable to agree that in these circumstances the judge adopted too high a starting point. It was entirely appropriate to meet the justice of the case. The Court was also unable to accept the submission that the judge failed to afford sufficient weight to the applicant’s mitigation. In the Court’s view, she adopted a flawless approach in this difficult sentencing exercise. She significantly reduced her starting point to reflect both the applicant’s mitigation and its charitable status. Proper credit was given for the applicant’s guilty pleas. She recognised the applicant’s limited means and the way in which it was funded in affording a generous time within which to pay the fine. The Court recognised that the hospice did important work, the dedication of its nursing and medical staff who could not be held responsible for what happened, and the generosity of the public in making donations to enable the hospice to operate for the benefit of all. It was the management of the hospice who failed to comply with their duty and the breaches of that duty were serious and significant in a way that had to be marked. The Court was unpersuaded that the sentence was manifestly excessive; it was just and proportionate. The application for leave to appeal against sentence was therefore refused.

In short, the Court of Appeal refused leave to appeal against a total fine of £250,000 imposed on a hospice charity for serious breaches of fire safety regulations, holding that the sentence was just and proportionate despite the applicant’s charitable status and important work.

Butt [2018] EWCA Crim 1617