Scottish court confirms use of English sentencing guidelines in fire safety cases

Handing down a sentence to hotel owners and an employee in the wake of a fatal fire in 2017, Sheriff William Gallacher confirmed that the sentencing guidelines for England and Wales should be looked at when sentencing both health and safety and fire safety matters in Scotland. Fire safety matters in England and Wales are now dealt with by the guideline for offences without a specific guideline, which directs the court to the health and safety guideline.

Health and safety expert Charlotte O’Kane of Pinsent Masons, the law firm behind Out-Law, said the approach had not previously been confirmed for fire offences in Scotland. O’Kane said the application of the sentencing guidelines would almost certainly result in higher fines.

Sheriff Gallacher fined the owners of the Cameron House Hotel £500,000 for fire safety violations, and sentenced hotel porter Christopher O’Malley to a 300 hour community payback order. They admitted to breaching health and safety rules after O’Malley put a plastic bag of hot ash in a concierge cupboard, causing a fire which led to the deaths of two hotel guests.

“The Scottish courts have already confirmed the significance of the Sentencing Council’s definitive guidelines in sentencing health and safety matters, but this is the first time they have been used in sentencing for fire safety failings. As with health and safety offences, while their use provides enhanced transparency and consistency, they are also likely to lead to increasingly hefty fines for those found to be in breach,” O’Kane said.

Health and safety expert Katherine Metcalfe of Pinsent Masons said: “At a time when there is considerable will to hold corporates increasingly to account for organisational failures this cannot be lost sight of in the boardroom – safety and health must be a key priority. Risk assessments must be rigorously maintained, and suitable mitigation measures adopted and kept under review. Staff must be properly and regularly trained, and a culture of compliance must permeate the business.

“For individual offenders too, the case sends a clear message; the court in this case made it clear that a custodial sentence was a distinct possibility. Had training been provided and not then followed, it is unlikely to have been avoided,” Metcalfe said.

In his sentencing remarks, reported by the Dumbarton Reporter, the sheriff said it was accepted that the English sentencing guidelines in relation to health and safety would equally apply in relation to offences under the Fire (Scotland) Act. However, he noted that, as in England and Wales, the guidelines should not be used “in a mechanistic or formulaic way”. Those guidelines require the sentencing court to take a stepped approach, assessing culpability and harm and looking at the offender's turnover to get a starting point and range of possible fines.

The prosecution suggested culpability for the deaths should be assessed as ‘high’, as the hotel had ignored concerns and allowed the breach to persist. The defence suggested medium culpability. The court decided that “the true level of culpability might be described as at the lower end of high, or the higher end of medium”.

The sheriff said the circumstances of the case, including the number of people exposed to risk and the fact that the failings were a significant cause of actual harm, did not justify the matter simply being left at medium culpability or harm category 2.

The court set the fine after assessing the hotel’s turnover as ‘medium’, taking into account its revenues both before and after the fire, and putting that into the context of the assessed level of culpability and harm. There were no areas of aggravation to be taken into account and all the mitigation measures mentioned in the guidelines were present.

The sentencing also took into account the fact that the company had appropriate fire insurance, occupier liability insurance and also profit insurance. The sheriff said the insurance cover meant the company was unlikely to have sustained the significant losses in relation to their income which might otherwise have happened, and the penalty should be raised as a result

However, the fine of £750,000 assessed by the court was lowered to £500,000 as the hotel owners pleaded guilty to fire safety breaches at an early stage.

In assessing the penalty to be handed to O’Malley, the sheriff said he would have considered a custodial sentence if O’Malley had been given specific training and instructions on how to dispose of ash and other materials produced by an open fire, and had disregarded these.

However, after considering the English sentencing guidelines, the court said it was appropriate to avoid a custodial sentence as O’Malley had not had specific instructions and had not contemplated that his actions would have led to the fire.

The sheriff said he was sentencing O’Malley to the statutory maximum of community service, as he considered that the early plea discount he was entitled to was afforded to him by the reduction in penalty from a custodial sentence.