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No5 Chambers’ Adam Farrer acts for HSE in appeal against sentence in fatal gas case

Adam Farrer of No5 Chambers has acted for the Health and Safety Executive (HSE) in the Crown Court and then in the Court of Appeal in relation to an appeal against a sentence in a fatal gas case. 

In November 2013, the appellant, Victoria Martindale, was sentenced to 16 months’ imprisonment suspended for two years, plus 200 hours’ unpaid work, a fine in the sum of £4,000, plus prosecution costs in the sum of £17,500 by recorder Elsom for seven offences contrary to the Gas Safety (Installation and Use) Regulations 1998. The offences arose from the failure to have an annual gas safety check (five counts) and to have the appliances, including the gas boiler maintained between 22 September 2006 and 29 December 2009 (two counts). From January 2009, the offences became punishable with a sentence of up to two years’ imprisonment.

This case involved the death of Stephen Newton, who was 51 years old. Mr Newton and his partner, Susan Davies, were the tenants of the appellant’s property in Stanley Common, Derbyshire. The property is a mid-terraced, two-storey house. Mr Newton and Ms Davies moved into the property on 4 November 2005. The applicant instructed letting agents to find a tenant. The agents arranged for a Gas Safety Inspection to be performed on 22 September 2005.  

Thereafter, the applicant failed to have the gas appliances inspected or serviced within the following 12 months. Thereafter, her failings continued until the fatal incident on 28 December 2009, a period of more than four years.  

On the afternoon of 28 December 2009, Mr Newton fell asleep on the settee in the living room. He was found dead the following afternoon. He had died from carbon monoxide poisoning from the inadequately maintained gas boiler. Further, it was a matter of good fortune that Ms Davies survived. She had felt unwell and went upstairs to bed leaving Mr Newton downstairs. Ms Davies fell unconscious and was rescued the following day when the emergency services attended the property. The next-door neighbour, Serena Cope, was also exposed to carbon monoxide from the defective gas appliance. She also required hospital treatment.

The Crown Court accepted that the appellant wholly failed to undertake her statutory duties as a landlord in relation to the gas appliances in the property. Her failures were significant and continued throughout the four years that Mr Newton and Ms Davies were the tenants of the property. There was no evidence of any genuine attempts by the appellant to have the gas appliances inspected or maintained at any point during the four-year period.

The learned recorder found that the applicant ‘just shut her eyes to what were her responsibilities, and accordingly did not undertake those duties that the law casts and quite properly casts upon her.’

In June 2014, the Court of Appeal rejected the appellant’s appeal against sentence holding that:

(a) The offences clearly crossed the custody threshold given the appellant’s total failure to comply with her duties as a landlord over a four-year period, which resulted in the death of her tenant and two other people requiring hospital treatment for serious injury. The Court of Appeal stated that it was only the absence of aggravating features, such as ignoring warnings and being motivated by profit, that enabled the court to suspend the prison sentence.

b) The sentencing judge was aware of the appellant’s limited financial circumstances when he imposed the fines of £4,000 and costs of £17,500. The appellant was an unemployed graduate (with health difficulties) in receipt of benefits, but she owned a house (without a mortgage) said to be worth £60,000.  

The sentencing judge anticipated that she would have to sell the house to pay the fine and costs. The Court of Appeal noted that the appellant had not supplied any independent evidence as to the value of the house. The Court of Appeal referred to R v David McGuire (1992, 13 Cr App R[S] 332) and held that it was not wrong in principle to require the appellant to sell her house in order to pay the financial orders. The court observed that she would be left with a significant sum of equity after paying the fine and costs. The appeal against the fine and costs was therefore rejected.

According to No5 Chambers, this Court of Appeal decision is likely to be of value to the HSE/prosecuting authorities when seeking to obtain orders for costs against individuals who have assets, such as equity in a house, but limited incomes.

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