Prosecutions under the Fire Safety Order - Responsible Person smell the coffee!
A packed Fire Safety Keynote seminar theatre listened with interest to Warren Spencer’s experiences of both prosecuting and defending cases under the Fire Safety Order in the 10 years since it came into effect.
Warren, a solicitor with Blackhurst Budd, explained that official figures put the number of prosecutions carried out in those 10 years at 372, but he pointed out that the real figure is “more like 500”, because of the way the figures have been collected (statistics only started being compiled from March 2009, for example). Between October 2006 and March 2015, Warren was involved in 61 cases. He warned delegates that the courts take offences under the Order “very seriously – the success rate of cases suggest that the majority are justifiably brought.”
He explained that while it was originally thought that fire offences would be prosecuted under both the Housing Act (by local authorities) and the FSO (by the fire service), the former have now taken a back seat. “This is largely because, under the Housing Act, the offences are summary only – they’re heard in the magistrates’ courts and the fines are limited – while under the FSO, the FINES are unlimited.”
He pointed out that a quarter of all the prosecutions were in relation to sleeping accommodation – the likes of hostels, care homes, HMOs, hotels, etc. Care homes are a particular focus right now, he said, and are dealt with severely by the courts, with some very high fines having been imposed recently.
According to Warren, the top five articles under which FSO prosecutions are brought are:
Article 14 – emergency routes and exits: 276 prosecutions;
Article 9 – risk assessment: 190 prosecutions
Article 8 – duty to take general fire precautions: 186 prosecutions;
Article 13 – fire-fighting and detection: 153 prosecutions; and
Article 17 – maintenance of premises: 123 prosecutions.
In terms of penalties, the highest so far was the £400,000 fine handed down to fashion retail chain New Look in 2010. The company appealed but, as Warren, explained, the Court of Appeal rejected it “because the offence was so serious, even though there wasn’t an actual fire or any injury – just the potential for it.”
Prison sentences of up to 19 months have also been imposed – Warren saw the defendants in four of his cases receive custodial sentences, again highlighting the seriousness with which the courts take these offences.
Myriad duty-holders have been prosecuted, including: premises owners and managers, employers and employees, fire alarm engineers, fire risk assessors, fire safety management companies, landlords and managing agents and designated premises supervisors. Said Warren: “In the case of the engineers and assessors, they certified alarms as fit for purpose, when they weren’t, for example.”
The corporate personality, he said, is essentially the responsible person. It can be a company (limited or unlimited), a partnership (including LLPs), a joint venture, school, trust or charity.
The defences open to those in front of the court are limited, Warren explained. “Basically, you’ve got: ‘it’s not me’ (articles 3 and 5), ‘I acted with due diligence’ (article 33), and ‘there was no risk of death, or serious injury’.”
He concluded with a quick rundown of some of the biggest cases, including those against Shannons Bar, The Ramshead Inn, 56 Chatsworth, Oldfield Bank, The Abbey College, Minster Care and ISAQ. In the case of the last of these, Warren said there is currently a ‘proceeds of crime application’ underway to recover the profits made by the company on a wedding venue they continued to operate despite a prohibition notice from the local fire service.