SENTENCING STATEMENTS

On sentencing, Sheriff Jackson said:

“On 25 March 2017 at around 16:25 hours, a fire broke out at Arcadia Gardens Care Home in Glasgow. Carol Hughes was a resident there. Having been rescued from the care home by the Scottish Fire and Rescue Service, she was taken to the Glasgow Royal infirmary. On that same day at 21:20 she succumbed to the injuries that she had sustained from the fire.

On her admission to hospital Ms Hughes was found to have airway compromise albeit that she was able to maintain her own airway. She also had 65 – 75% burns. Because her survival seemed very unlikely she was treated palliatively in the time immediately before she died. A post-mortem examination some days later recorded her death as 1.a severe burns and inhalation of smoke due to 1.b house fire.

Carol Hughes was 54 at the time of her death. She was single with no children and she leaves behind her next-of-kin, being her sisters Catherine Anderson and Teresa Cochrane and her brothers William and Lesley Hughes.

Ms Hughes had been diagnosed with multiple sclerosis in 2007. She had managed to live independently albeit with support but the worsening of her condition meant that she required full-time care. As a result of this, she went to live in the Arcadia Gardens Care Home as a full-time resident in November 2015. Ms Hughes was a smoker who smoked cigarettes and used e-cigarettes.

Arcadia Gardens is a residential community located in the East End of Glasgow. It is purpose-built and provides general nursing and residential care to people suffering from physical and mental disabilities. At the time of this tragic death there were 72 ensuite single bedrooms and a staff of around 75. The main residential part of the building was a single-storey construction divided into three internally linked units each catering for 24 residents. There was also a laundry, kitchen, dining room, offices, TV rooms and several communal areas as well as an outdoor communal garden area within the care home. At the time of the fire, the garden area was the sole designated smoking area.

Ms Hughes had occupied room 51 within what is known as the Bruce unit. The fire alarm system divided the care home into 12 zones, each divided by fire doors. Room 51 is shown to be in zone 12 of the zone plan referred to within the detailed agreed narrative. The kitchen and laundry are adjacent, further to the right, in zone six.

At around 16:25 on 25 March 2017, a fire broke out at Arcadia Gardens. At 16:27, the Scottish Fire and Rescue Service operations control centre received a call from the alarm receiving centre which monitored the fire alarm system at Arcadia Gardens indicating a fire alarm actuation at the care home. An additional message was received by the fire service control informing that the alarm had operated in zone six – within the kitchen.

When the fire alarm sounded, nominated staff members from the care home made their way to the main fire alarm control panel that was located on the wall in the main reception area in order to establish the cause of the fire alarm and to further establish the part of the building that the alarm had operated in.

In the event of a fire, the fire detection alarm should indicate in which zone the fire is located by means of a red light. The system showed zone six as the location of the fire alarm activation. This corresponded with the kitchen and laundry area on the zone plan located next to the fire alarm panel.

The kitchen staff who worked in zone six initially evacuated the building as this was what they were instructed to do. Following dialogue with the manager, they re-entered the building in order to investigate the fire alarm activation. In fact, no fire was discovered within zone six, being the kitchen and laundry area.

Following a period of time, staff saw smoke building up beyond the cross corridor doors leading from zone 6 to the residence rooms. Upon further investigation, it was discovered that the smoke was coming from room 51 occupied by Carol Hughes. Because of the level of smoke build-up within the corridor, staff were not able to access Ms Hughes’s room to assist with evacuating her from the building.

At 16:30 hours, three fire appliances were sent to the incident. The first appliance arrived at 16:34 hours and the incident commander watch manager was told by a member of staff located outside the building that there was a fire in a room with the occupant still inside. The watch manager quickly asked an ambulance to attend. At 16:50 hours, Ms Hughes, who was suffering from severe smoke inhalation and burns was rescued by Scottish Fire Rescue Service personnel from her bed in room 51. She was taken by ambulance to GRI at 17:10 hours.

The Scottish Fire and Rescue Service undertook an investigation which established that the fire had originated within room 51, most likely amongst bedlinen or clothing worn by Ms Hughes. The fire had spread to bedding materials and the air mattress of the bed. A lighter and e-cigarette was found on the bed. A second lighter was found on the floor close by the bed. Those items were the only viable ignition sources identified in the area where this fire started. The conclusion of the investigation report was that “this fire was accidental in nature and [was] a result of the careless disposal, and or use, of smokers materials, on or amongst the deceased clothing or bedding”

Expert Report

The chief inspector of the care inspectorate, Marie Patterson, provided her expert opinion by way of a report into this tragic death. She was provided with Ms Hughes care plan and risk assessments. The expert noted that on 4 March 2017 Ms Hughes had begun to spend extended periods in bed, and was declining to get out of bed. In the opinion of the expert, this change in Ms Hughes circumstances should have prompted a review of her care plan and risk assessments in relation to the risks to which Ms Hughes was exposed as a heavy smoker who, because she was bedbound, did not have access to the designated smoking area in the care home. The failure to undertake such a review meant that the risks to which Ms Hughes would be exposed through lack of access to the dedicated smoking areas, were not assessed and appropriate control measures were not put in place.

Had such a review been undertaken, it would have identified that there was a risk associated with Ms Hughes keeping her lighter and cigarettes in her room whilst she was bedbound. In particular there was an increased likelihood that Ms Hughes might seek to smoke whilst in bed and that, by virtue of her mobility issues, she would be unable to protect herself in the event that she dropped a match or a lit cigarette.

The expert considered that, had these risks been identified, they could have been mitigated by appropriate monitoring and ensuring that Ms Hughes was supervised while she smoked.

Fire Alarm System Review

Following this incident an independent inspection of the fire alarm system was carried out by Mitie Fire and Security. They established that the zone chart was found to be inaccurate  insofar as room 51 (which was Ms Hughes’s room) was displayed on the indicator panel as part of zone six when the chart showed this room as zone twelve.

Had the correct zone and room been identified by the fire detection system, the staff could have been able to attend at the location of the fire sooner. However, it cannot be said that the loss of Ms Hughes’s life can be attributed to any delay which occurred in attendance at her room.

The Accused Company

The Arcadia Gardens Care Home came into the ownership of HC-One Group in November 2011 at which time they became the duty holders for the premises. That means, put simply, that they became responsible for the health and safety of everybody involved in that place. This company is one of the largest care home companies in the United Kingdom with over 250 care homes encompassing dementia, nursing, residential and specialist care.

The accused company has two previous convictions; one dating from October 2017 resulting in a fine of £45,000 and one relating to the death of a resident in a residential nursing home in Fife in May 2019 which resulted in a fine of £270,000. This latter conviction which also involved the death of a resident in a care home relates to an incident that occurred in 2015.

Today, the company has pleaded guilty to a contravention of section 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Specifically, they have now admitted that, firstly, they had failed to undertake an adequate review of the care plan pertaining to Carol Hughes once she had become bedbound and in particular failed to suitably and sufficiently assess the risks to her health and safety to which she was exposed by having access to smoking materials whilst bedbound. Secondly, they had failed to maintain the fire alarm detection system in an efficient state, in efficient working order and in good repair, in that the system, when activated by detector, did not identify accurately the location of the activation. The company accepts that as a result of the initial failure to which I have referred, whilst she was bedbound with access to smoking materials, a fire broke out in Carol Hughes’s clothing, bedlinen or similar material which caused her to suffer severe burns and smoke inhalation from which she died. Separately they accept that there was a delay in identifying the location of that fire due to the defect in the fire detection system.

Disposal

And so I turn then to the question of disposal. Nothing that this Court can do can bring Ms Hughes back. But what this Court can do and what this court must do is select a sentence appropriate to this crime. In Scotland, when passing sentence, a Sheriff must consider a number of factors. I require to punish the offender and I also require to allow society to express its discontent at this type of behaviour. It is vitally important that everyone learns from these mistakes.

I require to consider a number of different factors when considering sentence. In this case there will be a fine. The objective of a fine should be to achieve a safe environment and bring that message home, not only to those who manage a corporate offender, but also to those who own it as shareholders. The Company is, without doubt a large company. Its year-end accounts for 2023 show a turnover of some £398 million. That said, those accounts show an operating loss of nearly £50m for last year and £25M the year before. I have been provided with the 3 latest sets of audited accounts and they are not eloquent of a company in good financial health. I am assured, however, that the company is solvent and continues to trade as it has done in recent years.

In determining sentence, I am obliged by law to follow the guideline developed by the Scottish Sentencing Council known as the Sentencing Process.

The first step of that process is an assessment of the nature and the seriousness of the offence. Its seriousness is determined by two things; the culpability (that’s the blameworthiness) of the offender and the harm caused by the offence. As either or both increase, so may the seriousness of the offence. I paraphrase now from the sentencing statement of now Lord Colbeck, in his sentencing statement in the case of HMA-v-GGHB when he says; “In this particular case the harm caused could not have been greater- as a consequence of the Company’s admitted failure [Carol Hughes] lost her life”. The process guideline goes on to provide that in assessing the seriousness of a particular offence consideration can be had to any existing guideline that may be applicable. In Scotland, we do not yet have a guideline dealing specifically with health and safety offences and so it is open to me to turn to the England and Wales definitive guidelines. I consider it appropriate to do so now.  I was invited by senior counsel for the company to find that his client’s culpability lay in the medium range.

I accept that submission. The opening line within the paragraph dealing with High Culpability says The Offender fell far short of the appropriate standard. It then provides examples of how such a failure might be manifested.  I am persuaded that the breach of the Act to which the company has pleaded guilty does not fit into any of those categories. Specifically, notwithstanding the tragic and awful consequences of the loss of Ms Hughes’s life, I do not consider that this breach represents a serious or systemic failure within the Company to address risks to health and safety. On the contrary, the care inspectorate report into the quality of care and support provided at the care home which was prepared in 2016 found the quality of care and support to be very good. I am also mindful of senior counsel’s submission that throughout the company’s management of the care home from 2011 to 2023 the home had never been the subject of any form of enforcement notice or proceedings of any type.

I also note senior counsel’s submission in connection with the frequency of risk assessment review which I am told occurred at least monthly. I am told that the last review undertaken prior to Ms Hughes’s death, which included a review of her smoking care plan, was carried out on 3 March 2017 and it was in fact on the following day that Ms Hughes began to decline to leave her bed. Of course, the company is correct to acknowledge that they ought, at some point shortly after that material change of circumstance, to have reviewed her smoking care plan which required her, and all other resident smokers, to smoke in the designated area which was out with all bedroom accommodation. I note also senior counsel’s submission that there had been no recorded incident which could or should have put staff on notice that Ms Hughes might smoke in her bed. For example, nobody appears to have found her smoking in her room, nor was any smell of cigarette smoke ever detected in the room. Again, however, the company is right to accept that with the benefit of hindsight, the risk that Ms Hughes may have smoked in her bedroom becomes more clear. Ultimately, senior counsel characterise the company’s failure with regard to ensuring dynamic risk assessment as in no sense deliberate but rather a genuine and isolated oversight in relation to the care of Ms Hughes. I agree that it is appropriate to consider matters in this way.

So far as what might be considered the second chapter of breach of its duty, I am told that in October 2016 specialist contractors were engaged by the company to update the fire zone chart, including the insertion of room numbers and that that work was undertaken and completed in the same month. The adequacy of that work was confirmed in writing by SFRS on 13 December 2016 following their inspection of that specialist work. I am invited to accept that, whilst as a matter of fact it is clear that this aspect of the fire detection system was not in an efficient state, the level of culpability which lies with the accused company in respect of this aspect of the charge is negligible. Again, I am content to accept that proposition. Put short, while the accused company accepts responsibility for the failure of the system to accurately identify the seat of fire, they did in fact arrange for the installation of that system by professional experts in that field and its installation and operation were signed off by the appropriate regulatory authority.

Returning then to the definitive guideline I find that, as conceded by senior counsel, the seriousness of harm risked is at level A. Thereafter, senior counsel invites me to conclude that there was a medium likelihood of harm. Ms Hughes was a confirmed smoker who had become bedbound. Nonetheless I have to reflect that there were no overt manifestations of Ms Hughes actually smoking in her room. Ms Hughes was frequently visited by staff in her room. I am told by senior counsel that she did, on occasion, leave her room and during those visits made by members of staff, Ms Hughes was never seen to have been smoking in her room, nor, I am told, was there the smell of cigarette smoke in her room. In light of these findings I conclude that there was a medium likelihood of harm. This results in a finding of Level A harm at Harm Category 2.  

I now consider the two factors to be considered in assigning what is called the “final harm category”. I recognise that the only person who was at risk of harm as a consequence of this breach was Ms Hughes herself. Thereafter, I find that the admitted failings were indeed a significant cause of harm (as defined in the guidelines). The range proposed by the definitive guideline is between £300,000 and £1,500,000 with a starting point of £600,000.

I now move to Step 2 of the guidelines. The accused company here is quite certainly a Large Company as that phrase is defined within the guidelines. I find that in fact a figure of £700,000 is appropriate at this early stage of the calculation to reflect the added aggravation of the recognised fact that the offence was a significant cause of the actual harm.

I then require to consider whether that figure should be altered to reflect any particular aggravations associated with the offence or indeed any obvious mitigations.

The tragedy of Ms Hughes’s death is already taken into consideration. There are, however, two previous convictions which I do consider to be relevant, particularly so that dating from 2019. Otherwise, I accept the submission of senior counsel that there is no other aggravating factor which might increase the level of fine and, indeed, there are a number of mitigating factors present in this case. There is ample evidence of steps taken to remedy the problem and, just as importantly, to learn from it. There has been a high level of cooperation with the HSE investigation. Finally, and importantly I am satisfied at the considerable remorse shown by the people at the head of this Company one of whom is present here in court today. Nevertheless, in light of all of those factors, in particular the previous convictions, I require to uplift the starting figure and I will establish what might be called the headline sentence at £750,000. I consider that to be a proportionate figure in all the circumstances as outlined to me in the agreed narrative and bearing in mind the company’s financial resource.

Finally in the question of disposal I require to consider the stage at which this plea has been tendered. Having given consideration to the very considerable utilitarian benefit achieved by discussing and agreeing this plea without the need for trial, I consider that the headline figure can be adjusted by one third resulting in a final figure of £500,000. There is also an associated victim surcharge which will require to be paid by the company. That sum shall be paid to the clerk of the court here in Glasgow within 28 days of today’s date and that sum will also be recoverable by civil diligence.

I am mindful of the fact that this company has operated at a loss in the preceding three years. It is of significance, however, to reflect on the various loans due to the company (and equally by it) and in all the circumstances, having given consideration to the three sets of audited accounts submitted on behalf of the accused company, I am satisfied that the principle of proportionality in sentencing is well met here.

That is the sum which the company will pay as the fine in this case. It is a figure which, I am sure, will remind the company’s directors and shareholders of the gravity of this offence. But I must stress that this is not, and could never be, a figure which in some way represents a compensation for the terrible loss Ms Hughes’s life.

Glasgow 15.8.24