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RRO Prosecutions Increase (average fines of £7,000)

With prosecutions under the Fire Safety Order growing in number, Warren Spencer offers a lawyer’s view of court action in this area.

IT WOULD appear that fire and rescue services across England are increasingly resorting to the courts as a means of enforcing the Regulatory Reform (Fire Safety) Order 2005. The legislation came into force in England and Wales on 1 October 2006 and, from a legal point-of-view, it has tidied up and clarified previous fire safety legislation, such as the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997. And there is evidence that more and more fire services are now prosecuting employers and other duty-holders under the Order for non-compliance with enforcement and prohibition notices.

In Lancashire, more prosecutions are being commenced under the Fire Safety Order than was the case under the previous legislative regime. By way of example, prior to the Order coming into force, I was involved in five prosecutions and defended in one case under the Fire Precautions Act. In contrast, over the last 18 months, acting as an agent prosecutor for Lancashire Fire and Rescue Service, I have been involved in 13 successful prosecutions under the Order, and defended two cases (outside Lancashire).

One reason for this increase in prosecutions may be that the Fire Safety Order provides more assistance and clarity than the previous legislation. For example, Article 3 of the Order gives a helpful definition of ‘responsible persons’ – unlike the previous Fire Precautions Act, which relied upon the term ‘owner or occupier’, for which no definition was provided. The Order is also supported by a number of comprehensive sector-specific Government guidance documents, dealing with the type of premises under consideration and the process of fire risk assessment.

The ‘responsible person’, as defined by the Order, is as follows:

This not only provides a list of persons for fire officers to identify, but also an order in which that list should be tackled. By contrast, the absence of a definition of occupier in the Fire Precautions Act allowed defendants to rely on the defence that they were not the occupier for the purposes of the Act – thereby shifting the burden of proof onto the fire service to prove that they were the person responsible for fire safety.

My first real experience of the Order related to an appeal against a fire service enforcement notice by the owner of a hotel. The appeal was brought on the basis that the cost of the works provided for within the enforcement notice was disproportionate to the income of the landlord/hotel owner, and that the recommendations contained within the notice were not necessary.

The appeal was heard before a District Judge, and the relevant guidance document was challenged by the defendant as being ‘merely guidance’ and therefore not legally binding. The Judge had little regard for the appellant’s arguments, and decided that, while regard should be had to the means of landlords when timescales are laid down for works to be carried out, the safety of the public was paramount.

The Judge gave weight to the guidance document and stated that, if the responsible person could not comply with the requirements contained therein, he would be in breach of the Order. The appeal was dismissed and the appellant was ordered to pay costs of £2,600.

HMO cases

In general, the offences contained within the Fire Safety Order reflect those contained in the previous legislation, albeit with one notable exception: Article 9 of the Order deals with the requirement to make a suitable and sufficient fire risk assessment. Clearly, the owners and landlords of houses in multiple occupation (HMOs) have been more severely affected by this particular requirement than, say, hotel owners and chains, who were previously regulated by the fire certification process under the Fire Precautions Act.

Prior to the Fire Safety Order, HMOs were regulated by the housing authorities of local borough councils and, therefore, had to comply with the Housing Act. However, the Order has effectively shifted responsibility for the regulation of HMOs from local government to the local fire service. Article 9 of the Order requires more detailed consideration and provision for fire precautions than was previously required under Housing Act legislation. It is interesting to note that nine of my 13 recent prosecutions have involved HMOs.

My experience of the prosecutions taken against such landlords shows that written risk assessments have largely been absent in cases where there has been either a fire or non-compliance with enforcement notices. Indeed, I have yet to see a written fire risk assessment within any prosecution file that has been forwarded to me. This is particularly relevant in Blackpool (where I am based), given the number of hotel bed and breakfast establishments and HMOs.

Responsible persons

From an evidential point-of-view, the most challenging aspect of formulating a prosecution under the Fire Safety Order continues to be that of identifying the responsible person. The responsible person definition in the Order has clearly proved helpful to those who prosecute, as none of the prosecutions that I have been involved in – and, in particular, those which have been defended – have taken any issue with the identification of the responsible person.

Nevertheless, it would appear that, for fire officers carrying out their enforcement duties, identifying the responsible person is still a thorny issue. Recently, I attended a seminar in the West Midlands where probably 50% of the questions raised from the 100 or so fire officers in attendance involved the identification of the responsible person – in particular, when those responsible for premises such as pubs, hotels or schools are large organisations.

However, my experience with Lancashire Fire and Rescue Service is that the responsible person is not only correctly identified in the cases brought by the fire authority, but that confirmation of that position is usually endorsed in interview, under caution.

Sentencing and fines

As far as sentencing is concerned, the attitude of the Magistrates’ Courts in Accrington, Blackburn, Preston, Blackpool and Lancaster has been robust. Charges successfully proved against defendants have been punished in a variety of ways, from curfew orders to community punishment orders. However, the primary method of sentence has been by way of fines.

The courts have not held back in administering punitive fines upon responsible persons found to have breached the Order. The average fine, in my experience, has been about £1,110 for each offence for which they are charged. Given that defendants have pleaded guilty to, on average, five charges per summons, fines have frequently been in excess of £5,000, and the average costs that guilty defendants have been ordered to pay is in the region of £2,275 per prosecution. On average, therefore, defendants who are fined are paying a total in excess of £7,000 in fines and costs in respect of these matters.

This level of fine means that, as far as Magistrates are concerned, fire safety related prosecutions are now ranking as highly in importance as prosecutions brought by the Health and Safety Executive.

‘On average, guilty defendants are paying more than £7,000 in fines and costs’

Attempts have been made by Lancashire Fire and Rescue Service to obtain access to the Police national computer (PNC), in order that a defendant’s previous convictions can be placed before the court at the appropriate hearing. Agreements have been reached with the Police that Fire Safety Order convictions in future should be held and registered with the PNC. This will also assist the court in discovering whether any defendant brought by a fire prosecution is subject to any court orders, such as probation orders or community service orders, which the court may be unaware of at the time.

Communication with environmental health agencies and housing departments of local government is also improving. I was involved in one case where a local council brought charges against a defendant for lack of fire precautions under the Housing Act. Once the fire service issued a summons in respect of similar matters, the borough council dropped their fire-related matters on the basis that the charges brought under the Fire Safety Order were more serious.

It is my view that the Fire Safety Order provides clearer and more concise assistance to fire officers, and indeed to the courts, when fire safety related prosecutions are brought. The success rate of prosecutions to convictions in Lancashire reflects that view. Once the courts, Magistrates and District Judges become familiar with the legislation, then a more consistent approach will be adopted across the country.

Given the freshness of the new legislation, courts are still relying upon sentences passed under health and safety legislation and/or the Fire Precautions Act for guidance when sentencing. However, it is only a matter of time before the higher courts become more experienced with the Order, and more precedents will follow.

Warren Spencer is a solicitor with Blackhursts Solicitors and acts as an agent prosecutor for Lancashire Fire and Rescue Service.

Source: www.frmjournal.com

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