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New Sentencing Powers For Fire Safety Breaches

Warren Spencer’s Insight

The Government have now lifted the cap on the maximum fine limit of £5000 in Magistrates’ Courts to become unlimited, meaning that the Magistrates’ Courts will be able to impose higher fines in relation to fire safety breaches than previously.

 

The majority of offences committed under the Fire Safety Order are “either way offences” which can be dealt with in either the Magistrates or the Crown Court.  Article 32(3)(a) states that a person guilty of fire safety offences is liable on summary conviction (in the Magistrates’ Court) to a fine not exceeding the statutory minimum which was previously £5,000 per charge or offence.

 

If the Magistrates deemed that their sentencing powers were not sufficient from a financial penalty point of view, then they would previously have had to commit the Defendant to the Crown Court for sentence where the sentencing powers are an unlimited fine or imprisonment for a term not exceeding 2 years or both.

 

On the 4th March 2015 the Government indicated that Section 85 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 should be commenced to lift the cap on the £5,000 statutory limit.

 

The new sentencing powers apply only to offences committed after the 12th March 2015.

 

This is an important increase in the Magistrates’ sentencing powers and will affect a substantial range of health and safety and fire legislation.  In particular, companies and their Directors may have to reconsider their approach to fire safety offences, which may previously have been considered as relatively minor, because of the limited fines involved.

 

It is likely that this will lead to more fire safety cases being dealt with in the Magistrates’ Court where the Magistrates have deemed that the sentence should be a financial penalty.  This means that the Magistrates’ Court will now be able to deal with all company defendants as a company can clearly not be sent to prison.  Directors and Shareholders prosecuted as individuals would still have to be sent to the Crown Court if a custodial sentence was being considered.

 

The existing case law upon fire safety sentencing should remain as guidance as it states that company profits and turnover should be considered by the Courts before financial sentences are passed.

 

The Court will still have a duty to consider what Individual Defendants on limited means can afford to pay off within a period of say 12 months, taking into account their particular incomings and outgoings.
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Brand New Case Study

Care Home Company Convicted of Fire Safety Offences

The owners of a care home for the mentally ill and vulnerable people, Midshires Healthcare Limited, has been fined £16,000 and ordered to pay costs of £11,477, after pleading guilty to four charges brought under The Fire Safety Order by Derbyshire Fire and Rescue Service.

On the 29 May 2013 firefighters were called to attend a fire at premises on Church Street, Riddings.  Although all of the residents were out of the property on arrival of fire crews, firefighters entered the building wearing breathing apparatus to tackle the blaze which had started on the 1st floor, in one of the resident’s bedrooms.

Upon inspection of the care home, Firefighters found several possible breaches of fire safety regulations.  Fire doors were wedged open, self- closing door devices had been removed or were ineffective, some fire doors were ill fitting and combustible furnishings were blocking escape routes.

Derbyshire Fire & Rescue Service, Area Manager Steve McLernon said: ‘If the fire had occurred a few hours later when the residents were asleep, the outcome could have been much worse’.

‘The means of escape were obstructed with furniture, some fire doors were damaged or ineffective and the escape lighting and fire alarm were not maintained.  Investigations revealed that the care homes’ fire risk assessment had not been reviewed since 5 May 2012 which would have probably identified the deficiencies and the measures required to make the premises safe from fire’.

Warren Spencer, Defending the Company, told the Court that it was difficult to imagine a more difficult set of premises to manage, given the propensity of residents to start fires and cause damage to fire doors and equipment. The Manager of the home had told the Fire Service, when interviewed, that whatever she asked for from the Company (in term of fire safety) she was provided with. A detailed risk assessment had been compiled but some of the testing had fallen behind.

Mr Spencer told the Court that the Company had an excellent safety record, the fire alarm had worked as it should have done and that ultimately all staff and residents had been successfully evacuated without any injuries. The resident who had started the fire had been convicted of arson and was serving a sentence.
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Fire Safety Management – Hiding Behind the Corporate Veil

Over the last six months I have had a number of enquiries relating to enforcement issues with large corporate bodies, and I particular with identifying responsible persons within large organisations and in premises where more than one person has control.

These issues are usually highlighted where fire audits have prompted indications to those responsible enforcement or prohibition notices are being considered.  FS Officers have then been bombarded with phone calls, e-mails and correspondence from large city law firms threatening legal action if such notices are issued.

What is concerning is that these ‘bully boy’ tactics often work.

My own view is that the lawyer’s role is to advise – not to negotiate. In the non-regulatory world criminal lawyers would never dream of contacting the police to advise them how to conduct their investigation, and certainly never threaten legal proceedings in the event of certain enforcement decisions being made.  Such interference would be considered as tantamount to perverting the course of justice.

So who should be investigated and who should enforcement action be taken against?

When carrying out any investigation or fire safety audit, it is essential that those with control of the premises are identified. In large organisations the task of identifying the responsible person (RP) or persons can be very difficult.  However, it is not for the enforcing authority to attribute which responsibilities attach to the various persons with control.  The legislation has been drafted in such a way as to relieve the investigating officers of that burden.

Consider the guidance documents. At Part 2 – ‘Managing Fire Safety’, the corporate responsibility is made clear.   The company policy should set out those who will hold responsibility for fire safety. When investigating large organisations, the written company policy should be sought immediately. A failure by the corporate body to have considered the above points could lead to further charges under Article 11.  Under Articles 5 (3) and 5(4), any person with any control over any part of the premises can be a person responsible under the Order.  This would include store managers; licensees; or anybody who made the decision to open the premises on any particular day.

Enforcement or Prohibition Notices should always be issued against the RP under Article 3, but they should also be issued against any persons with any control over the premises.

A number of issues have been raised recently, for example, with regard to the relationship between breweries and licensees. In these situations, there is usually a lease agreement which details the repairs responsibilities of each party. However, very few leases deal with fire safety responsibilities. The investigating officer must satisfy himself that the employer or owner of premises has properly divested themselves of their responsibilities under the Fire Safety Order.  How can they have done this if they have not included relevant clauses in the lease?

Article 22 is quite clear: where two or more responsible persons share duties in respect of premises, each must co-operate with the other person concerned so far as is necessary to enable them to comply with the requirements and prohibitions imposed on them by the Order.

If the relevant notices are served on all the responsible persons and those notices contain reference to Article 22, the investigating officer has done his job. He need not get involved with the arguments as to who is responsible for the fire alarm.  The Magistrates’ Court will have little sympathy to such arguments either.  They will merely quote Article 22, and tell those responsible to sort it out.

The Order and the guidance clearly foresaw the practical difficulties of enforcement against large organisations.  If the guidance documents and Article 22 are properly utilised the ‘bully boy’ tactics and clever legal arguments may well start to backfire.
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Warren Spencer’s Insight

PROCEEDS OF CRIME AND THE RRO

In a previous article I outlined the success of the London Fire Brigade prosecution of Irshad Ibrahim in which a Confiscation Order was obtained under the Proceeds of Crime Act 2002, in relation to breaches of the Fire Safety Order.

It is now clear, therefore, that it is open to a prosecuting authority, in a fire safety case to seek a Confiscation Order against a Defendant who has received direct income as a result of breaching the Order.  My experience of over 120 prosecutions indicates that Landlords do not take fire safety measures because they regard the risks inherent in prosecution to be less than the costs of the measures needed to rectify the breaches.   Therefore, the use of Confiscation Orders as a means of increasing the risk to Landlords could be expected to serve a useful public interest certainly by way of deterrent.

However there would still be some risk to the prosecuting authority in pursuing a Confiscation Order.  In most cases an application involves expenditure in either training an in-house accredited financial investigator, or sub-contracting the financial investigation to an external accredited investigator.  There would be no point in pursuing a Defendant with no money or assets for a Confiscation Order, so enquiries and investigations would have to take place to establish that the application would be fruitful.

Certainly, there would be some financial incentive to  prosecuting authorities to pursue proceedings if they recovered a percentage of the monies sought, which could be used to bolster badly needed fire safety budgets.  But, it is important to distinguish between incentivising the taking of proceedings which should be in the public interest and taking proceedings with the sole purpose of securing additional funding for a prosecuting authority.   It would not be in the public interests (although many would disagree) to seek an Confiscation Order solely for the purpose of boosting fire safety department budgets, as the prosecutor would have to have regard for the public interest above that of his client (employer).

The incentive to take such proceedings, which are justifiably in the public interests does, though, exist in the form of the Asset Recovery Incentivised Scheme “ARIS” under which a proportion (currently 18.75%) of any Confiscation Order made (and actually recovered) is paid to each of the prosecuting and investigating bodies.   A fire service responsible for the pursuing of an order involving its investigation and prosecution would then receive 37.5% of the amount actually recovered.  (I have been involved in an Environment agency prosecution where £100,00 was recovered.) This would, of course, be subject to the costs of employing the necessary accredited investigator and possibly some legal costs.  But, the Confiscation Order will take priority over the payment of costs and it is likely that the share of a payment under ARIS will more than cover the authority’s costs of taking the proceedings, especially where breaches have been committed over a long period of time or where a substantial amount of money has been saved or profits increased as a result of the breaches.

So the question for enforcement authorities, at this stage, is whether or not to invest in training an appropriate accredited in-house Financial Investigator or one which may be shared between separate fire service authorities.   Cases where rich Landlords have blatantly flaunted the law may form attractive precedents upon which to pursue a Confiscation Order.  It may also be necessary to train fire officers to obtain the appropriate information during their investigation and/or in interviews with potential Defendants.

This is an area in which Local Authorities, Environmental Health Agencies and other prosecuting bodies have developed a high degree of success and which, of course, result in the reparation of the crime being directly linked to the funds of those who enforce the legislation.  Large corporate organisations that persistently breach the Order could be targeted in this way, and if fire services are unable to take such a financial risk then the sharing of resources may be the answer.
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Pre-Purchase Surveys

When purchasing commercial property, particularly Hotels and multi-occupied premises, it can be a very wise move having a pre-purchase survey of the existing fire precautions, just as you would the building.

This is an area that is often overlooked compared to other aspects such as structural integrity and general condition.  We have seen, on many occasions, people purchasing property only to find, when the inspector calls, that they are saddled with a large bill, which can run into thousands, in some cases, tens of thousands, of pounds.  In the case of a need for a new fire alarm system, not only is this extremely costly, but the cabling work can leave significant redecoration issues.

This can be enough, as we have seen, to make their investment cost negative.

Firexact can provide pre-purchase surveys which are likely to be extremely cost effective in the long run.
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Warren Spencer’s Insight

Landlords Not Protected by ‘Full Repairs Lease’ Under RRO

One of the most significant difficulties for fire safety enforcement officers when auditing multi- occupied premises is establishing who has control over the various parts of the premises.

Article 5 (3) of the order states that fire safety duties ‘…shall be imposed on every person, other than the responsible person, ……who has, to any extent, control of those premises so far as the requirements relate to matters within his control’.

As far as the owners or landlords of properties are concerned, the control over the premises is passed to the tenants and the extent of that control is usually detailed in a lease. Commercial landlords have long since seen the benefit of passing the requirements to comply with all health and safety legislation to the tenant but have to balance the abrogation of such responsibilities with the desire to retain their own influence on how the premises are used or altered.

Hence, the full repairs lease. This usually allows the commercial landlord to rid itself of all compliance responsibilities yet retain control of the structure of buildings by requiring the tenant to obtain their permission when alterations are intended, as and when necessary. Consequently, when non-compliance with statutory provisions occurs, the commercial landlord can place responsibility entirely upon tenants and point to the full repairs agreement to support their case.

This was the clear response of the commercial landlords in 3 of my recent cases. In each case the initial reaction of all 3 organisations, in response to attempted enforcement, was to deny any responsibility under the Order, despite repairs leases which allowed them to retain some degree of control. Significantly, none of the three leases referred to the RRO or the responsibilities the Order imposes.

In two of the cases, ‘pub chains’ (they don’t like being called ‘Breweries’ any more), attempted to hide behind full repairs leases and clauses which indicated that the tenant/publican was solely responsible for compliance with statutory requirements. Both cases involved licensed premises, where the exit route from the upper floor led directly into the bar of a public house. There was no issue as to the fact that the pub chains were aware of this fact.

The first case involved an appeal against an Enforcement Notice by Enterprise Inns PLC in respect of licensed premises in Cumbria. Enforcement Notices had been served against the publican/licensee and against the pub chain in respect of required works or works required to ensure compliance with the RRO. The publican did not appeal. Enterprise Inns, however, did appeal on the basis that they were not the responsible persons under Article 3, or ‘persons with analogies duties’ under Arts 5(3) and 5(4).

Following full legal argument regarding the issuing of the Enforcement Notice against the owners of premises, the Magistrates found that, although the responsible person as defined by Article 3, was the tenant, Enterprise Inns had retained responsibilities to maintain and repair and to ensure safety within the premises by offering to assist the tenant with fire safety compliance and be requiring him to seek their approval in respect of any repairs. They found that the pub chain had retained responsibilities under articles 9, 14, 17 and 22.

In the 2nd case, renovations which dangerously positioned the escape route had been carried out by Punch Partnerships (PML) Ltd, and both the fire risk assessor and the publican were prosecuted under the Order. In that particular case, the publican pleaded ‘not guilty’ to certain charges relating to the exit route, making it clear in his defence that he had no control over the exit route in question and was unable to correct the breach of the Order without the consent of the pub chain. The pub chain for their part, initially denied that they were responsible persons or persons with ‘analogous duties’ under the Order. Nevertheless, a summons was served upon Punch.

A jury trial was not necessary to decide the point, as Punch Partnerships eventually pleaded guilty to breaching article 14(2)(b) on the basis that it accepted that the means of escape from the first floor of the premises did not, in the event of danger, enable persons to evacuate the premises as quickly and as safely as possible. Punch have subsequently rectified the situation and built a new external staircase leading from the first floor to the outside of the premises. Punch Partnerships, was fined £2000 and ordered to pay £8000 costs in respect of the breach.

In the third case, the landlord company of a ‘takeaway’ with living accommodation on the upper floors, initially denied all responsibility for their residential tenant following a fire in the ‘takeaway’ premises – in which the tenant was unable to safely evacuate and had to be rescued from the second floor. They stated that the repairs lease with the takeaway owners prevented them from being responsible for the residential tenant’s fire separation and exit route, as both internal and external exit routes passed through the ground floor premises. However, following court proceedings, MJC Developments Ltd pleaded guilty to 3 charges relating to the exit routes, fire separation and, significantly, failing to cooperate and coordinate with other responsible persons (namely – the takeaway owner, who was also prosecuted) under article 22, and was sentenced to a fine of ——–plus costs.

It is hoped, therefore, that these three cases, despite not constituting binding precedents, will lead to a significantly more co-operative approach in the future. All three organisations have now implemented schemes such as the Safety Management Solutions scheme and Punch’s ‘Knowingly Safe’ program, to enable cooperation with tenants who do not have the financial backing to ensure premises are compliant rather than simply denying all responsibility.
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Warren Spencer's Insight

Fire Safety Management - Hiding Behind the Corporate Veil

Over the last six months I have had a number of enquiries relating to enforcement issues with large corporate bodies, and I particular with identifying responsible persons within large organisations and in premises where more than one person has control.

These issues are usually highlighted where fire audits have prompted indications to those responsible enforcement or prohibition notices are being considered.  FS Officers have then been bombarded with phone calls, e-mails and correspondence from large city law firms threatening legal action if such notices are issued.

What is concerning is that these ‘bully boy’ tactics often work.

My own view is that the lawyer’s role is to advise – not to negotiate. In the non-regulatory world criminal lawyers would never dream of contacting the police to advise them how to conduct their investigation, and certainly never threaten legal proceedings in the event of certain enforcement decisions being made.  Such interference would be considered as tantamount to perverting the course of justice.

So who should be investigated and who should enforcement action be taken against?

When carrying out any investigation or fire safety audit, it is essential that those with control of the premises are identified. In large organisations the task of identifying the responsible person (RP) or persons can be very difficult.  However, it is not for the enforcing authority to attribute which responsibilities attach to the various persons with control.  The legislation has been drafted in such a way as to relieve the investigating officers of that burden.

Consider the guidance documents. At Part 2 - ‘Managing Fire Safety’, the corporate responsibility is made clear.   The company policy should set out those who will hold responsibility for fire safety. When investigating large organisations, the written company policy should be sought immediately. A failure by the corporate body to have considered the above points could lead to further charges under Article 11.  Under Articles 5 (3) and 5(4), any person with any control over any part of the premises can be a person responsible under the Order.  This would include store managers; licensees; or anybody who made the decision to open the premises on any particular day.

Enforcement or Prohibition Notices should always be issued against the RP under Article 3, but they should also be issued against any persons with any control over the premises.

A number of issues have been raised recently, for example, with regard to the relationship between breweries and licensees. In these situations, there is usually a lease agreement which details the repairs responsibilities of each party. However, very few leases deal with fire safety responsibilities. The investigating officer must satisfy himself that the employer or owner of premises has properly divested themselves of their responsibilities under the Fire Safety Order.  How can they have done this if they have not included relevant clauses in the lease?

Article 22 is quite clear: where two or more responsible persons share duties in respect of premises, each must co-operate with the other person concerned so far as is necessary to enable them to comply with the requirements and prohibitions imposed on them by the Order.

If the relevant notices are served on all the responsible persons and those notices contain reference to Article 22, the investigating officer has done his job. He need not get involved with the arguments as to who is responsible for the fire alarm.  The Magistrates’ Court will have little sympathy to such arguments either.  They will merely quote Article 22, and tell those responsible to sort it out.

The Order and the guidance clearly foresaw the practical difficulties of enforcement against large organisations.  If the guidance documents and Article 22 are properly utilised the ‘bully boy’ tactics and clever legal arguments may well start to backfire.
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Richard Stott’s Insight

Rose park Care Home, Scotland

The deaths of 14 elderly residents in a care home blaze could have been prevented by a “suitable” fire safety plan, an inquiry has concluded.

The fire at Rosepark care home in Uddingston, South Lanarkshire, broke out in a cupboard on 31 January 2004 and ripped through the building. The fatal accident inquiry (FAI) began in February 2010 and finished taking evidence in August.Sheriff principal Brian Lockhart has now delivered his findings following the 141-day probe.

He found that “some or all” of the deaths could have been prevented if the home had a “suitable and sufficient” fire safety plan.

Sheriff Lockhart concluded: “The management of fire safety at Rosepark was systematically and seriously defective.

The deficiencies in the management of fire safety at Rosepark contributed to the deaths.
“Management did not have a proper appreciation of its role and responsibilities in relation to issues of fire safety.” He said the “critical failing” was not to identify residents at the home as being at risk in the event of a fire, as well as failing to consider the “worst-case scenario” of a fire breaking out at night. (Source – BBC)

This case was not atypical of some of the premises we come across.  Often it is the case, in any disaster, that a series of small faults, each difficult for a non-expert to see, lead to the significant event.

A well-conducted risk assessment would highlight and resolve the issues.
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Richard Stott’s Insight
Save Money With The Correct Advice At The Right Time

Fire precautions can be costly.  On many occasions during my time as a fire safety officer in Blackpool, I witnessed well-meaning people purchasing property only to find that they had not factored in the cost of, for example, the Installation of a new fire alarm system costing many thousands of pounds or the upgrade of fire resisting doors.

This often left lead to individual running into severe financial difficulty. Requesting advice during or prior to purchase, on the state and adequacy of fire precautions would have been extremely cost-effective.

Additionally, poor advice can see companies and individuals implementing fire precautions that are not necessary and over the top.  I have witnessed a major supermarket chain implementing significant and extremely expensive measures that serve no purpose, due to over-specification.
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Warren Spencer’s Insight

Enforcement Authority or Service Provider?

 The debate as to whether the fire and rescue service is the appropriate enforcing authority for legislation such as the Fire Safety Order is long-standing, and continues to be discussed on forums and blogs by fire service personnel and other industry related parties.

Arguments against fire service enforcement historically, were based upon the lack of knowledge, expertise and enthusiasm of the fire enforcement officers, who may have been placed within fire safety departments for any number of reasons other – than career choice.

More recently, since substantial government cuts, fire safety departments seem to have been ‘stripped to the bone’ in an attempt to save as many front-line firefighting jobs as possible. There appears to be a high turnover of officers in fire safety departments, again for various reasons such as retirement, promotion or cost savings.

There are also a number of different views towards enforcement generally within the fire services. Some services favour strict enforcement of the legislation, through enforcement and prohibition notices, and ultimately prosecution, whilst others favour deficiency notices, action plans and legal cautions.

My own view is that the historic argument of the uninterested unqualified and unenthusiastic fire enforcement officer no longer holds water. I provide basic legal training to a number of fire and rescue services and I have encountered only highly competent and professional fire safety personnel, eager to learn no matter what their experience. I have now over 9 years’ experience of dealing regularly with cases where fire officers have had to give evidence, prepare legal cases and, to assist me with my understanding of the regulations, guidance and interpretation. I would struggle to cite even one instance where an officer has been anything but professional, competent and helpful in that regard.

Many fire safety officers carry out fire consultancy work in addition to their fire service roles. In fact, I am often asked for the legal position as to whether a fire officer can carry out consultancy work within the area covered by his/her employer. I usually respond that, in my opinion, to provide consultancy work in the enforcement area covered by your employer could potentially lead to a conflict of interests. Clearly, if enforcement issues arise in relation to premises where an employee of the enforcement authority has advised then a potentially embarrassing situation will result if the responsible person complains that he was merely following the advice of a competent person, namely an employee of the enforcement authority.

I was, therefore surprised, after providing this opinion to an inquisitive fire officer recently, when he replied that if it was a conflict of interest for him, then it must be a conflict for his own fire service employer, who had set up a company with the intention of carrying out fire risk assessments within their own enforcement area?

How can this be so? Can an enforcement authority set up business to provide a service which complies with the regulations it is statutorily obliged to enforce, and still retain its independence and objectivity? Is this not a blatant potential conflict of interest? Not to mention the unfair competitive edge it must surely have over its competitors.

Or is this the way forward? It would appear to be a legitimate way for fire safety departments to fund themselves and it would provide consistency of advice and guaranteed competence to those who use their services.

But it must surely again raise the question as to whether the fire service is the appropriate enforcing authority, when it is delivering services which could make it accountable under article 5(3) of the Fire Safety Order.

In such circumstances, could things go full circle? Would the private sector then be entitled to bid for the enforcement work?
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