There has been discussion within the services for whom I prosecute recently about the advantages of charging Defendants predominantly under Article 8 (Duty to take general fire precautions) as opposed to charging various Counts under the relevant Articles appertaining to the individual breaches, as alleged.
For me this raises an interesting discussion. As a Prosecutor I have always taken the view that a Defendant should be charged under the Article which most accurately describes the alleged breach. This is because a Defendant is entitled to know exactly which charge he faces and what offence he is actually alleged to have committed.
A quick survey of the Home Office statistics show that Article 8 is not the most popular charge used in enforcement proceedings under the FSO. The most common Article used is Article 9 (Fire Risk Assessment) followed by Articles 14, 13 and 11. Article 8 comes in as the sixth most popular charge in relation to prosecutions.
I have always been wary of including too many ‘management’ charges under Articles 8, 9, 10, 11 and 17 in addition to specific charges under Articles 13, 14 and 15. This is because I am anxious to avoid duplication. If I was defending such charges I would simply go to the Prosecutor and say “If my client pleads to all of the substantive charges under Articles 13, 14 and 15 what else is alleged to have been committed under the ‘management’ charges?”
In fact, a number of Defence Solicitors are now requesting further particulars of the charges faced by their clients to ascertain exact details of the alleged breach in each particular charge.
But Article 8 is different from the other Articles. Significantly, Article 8(1)(a) is an offence of strict liability. This means that if a breach can be proved, there is no defence to it. It reflects the absolute duty of an employer for the fire safety of his employees. Hence the Article 33 Due Diligence Defence, cannot apply to Article 8(1)(a). For this reason if a Defendant is an employer then I will always include an Article 8(1)(a) charge wherever I can. Article 8(1)(b) does not apply to employees and is not, therefore, a strict liability offence.
But what if the Defendant is charged with an Article 8 offence which specifies the breach (which may have been included under, say, Article 14)? This is fine as long as it complies with Article 32(1)(a) in that it placed relevant persons at risk of death or serious injury. There are some advocates who prefer this approach as it covers a far wider range of situations than the specific breach and, it is argued, the Courts prefer to deal with fewer charges rather than a long list of substantive breaches. There is certainly some merit to this view. However, under past sentencing legislation the Magistrates’ Court is confined to a maximum fine of £5,000 on each charge. If a Defendant pleaded guilty, this would have to be reduced by at least a third. Hence limiting the number of charges to Articles 8 and, say, 9, would mean that the Magistrates’ Court would have a maximum sentence of £10,000 – but in reality (in the event of a guilty plea) a maximum sentence of £6,666. It also removed the chance for the Sentencing Tribunal to express its displeasure at particular offences which it may consider to be aggravating features of the case.
For example, a failure to carry out any form of fire risk assessment shows a complete disregard for fire safety and maybe sentenced more harshly than other offences. Similarly, a breach of an enforcement or prohibition notice is usually considered as an aggravating feature, as is a situation where a Defendant has previously been instructed to carry out certain fire safety measures and they have not been completed. Magistrates may utilise the “totality principle” and sentence on certain charges to reflect the Defendant’s means (so where there had been 12 charges the Magistrates would fine the sum of £3,000 on 5 of the most serious charges because they take the view that they are the most serious and they think that the whole set of circumstances deserves a fine of £15,000).
However, those sentencing have now been removed for offences committed after 11th March 2015, because Section 85(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 came into force and removed the £5,000 per charge limitation.
It may be then, that now a general charge under Article 8, in which the whole circumstances of the prosecution can be described to the Court, maybe preferred to the long list of alleged breaches under the various Articles 8-22.
In my experience, there are different attitudes towards charging which are dependent upon the Sentencing Tribunal. Magistrates seem to like having the individual charges described to them whereas the Crown Court prefer the case presented “in a nutshell”.
I have regularly drafted 12 to 15 charge, summonses which, when the case has been sent to Crown Court, had been re-drafted by learned Counsel, Mr Joseph Hart of Deans Court Chambers, who likes to cover four aspects of fire safety within his indictments.
Mr Hart prefers, where possible, to cover:-
- The planning and preparation of fire safety measures
- Management and training of personnel
- Maintenance and provision of fire safety equipment
- Reaction and response to known issues and emergency situations (for example prohibition and enforcement notices or post-fire reactivity).
Joseph Hart has conducted a large number of fire safety cases under the FSO, and he believes that the Crown Court usually prefers to deal with these separate aspects of offending and will draft the various charges on the indictment to cover these principles.
My view is that the FSO was devised in a careful and considered way to include specific breaches relevant to all the circumstances. As such I believe that individual Articles should be used in the appropriate cases but the most important point is that the Court gets the message as to the most significant factors which contributed to the risk of death or serious injury so that it can sentence accordingly.