There are a number of potential offences contained within the Fire Safety Order (FSO), but there is only one prescribed defence available, and that is the defence of due diligence contained within article 33.
The due diligence defence is common throughout regulatory law, such as health and safety and food safety, but the relevant legislation does not usually detail what precautions, procedures and safety measures will be required to satisfy the defence. In the area of health and safety there is a raft of case law, which can guide defendants as to the way in which the courts have approached due diligence in past cases, but I am not aware of any helpful case law in relation to due diligence in fire safety cases.
Article 33 states: “… It is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.” (ie under the FSO)
Significantly, article 33 does not provide a defence of due diligence to employers in relation to the failure to take general fire precautions to ensure the safety of employees (article 8 (1) (a)), due to the strict liability nature of that article; or in relation to the elimination or reduction of risks from dangerous substances (article 12).
In all of the cases I have conducted under the FSO, the due diligence defence has only been raised as an issue in about a dozen cases. I will outline how the courts have approached the issue in 5 of those cases.
It is clear from these cases that the court will set the bar for due diligence at a very high level.
In my very first case under the FSO back in 2007, the significance of the guidance documentation was raised in the context of due diligence. The defendant effectively argued that the guidance documents were just that – guidance, and as such there was no strict rule that they had to be followed.
The judge found against the defendant, stating that if a defendant did not wish to follow the guidance provided by the government, alternative measures which achieved the same level of compliance with the FSO must be carried out instead. Due diligence could not be established where guidance had been simply ignored or where less effective measures had been carried out.
What is clear is that each case of due diligence will be decided upon its own facts.
In one of my cases, a case which went to trial, I opened the case by stating that an initial inspection by the fire service had discovered a faulty fire alarm system within a restaurant with living accommodation above, and that when they returned a month later, the alarm system was still in the same condition. At that point the judge stopped me and asked the defendant’s barrister, if a due diligence defence was being pursued. She answered that it was. The judge then asked how on earth such a defence could possibly be pursued when an alarm system had not worked for a period of one month. (Feeling like I was on a winner, I pointed out to the judge that the alarm system was not actually rectified until 5 months after that!). At that point the judge asked my opponent if she wanted the opportunity of discussing the case further with her client. She said that she did. She returned 5 minutes later to inform the court that the defendant was going to be pleading guilty.
In another, slightly unusual case. The defence was raised in a more indirect way. The defendant was the landlord of an HMO. The fire service visited and deemed the premises totally inappropriate for such use and indicated that a prohibition notice would be served. The landlord stated that enforcement would not be necessary as she would, in future, let the premises as a single private dwelling to a family unit, rather than as an HMO. The fire service gave her the benefit of the doubt and refrain from issuing a notice. 3 months later a further inspection revealed that the premises were again being used as an HMO. The landlord was charged with numerous offences and defended them at trial on the basis that she had let the premises to a single family unit who had then sublet the premises to other individuals without her knowledge. Effectively, she was asserting that she had taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence by letting the premises as a single private dwelling.
We, the prosecution, argued that such a defence could not be satisfied, as the defendant was effectively on notice that the premises were not safe to be used as an HMO, and was, therefore, under a duty to make sure that they were not used as such. We argued that even the most cursory checks would have revealed that the premises were being used as an HMO. The jury agreed. The defendant was convicted.
In a case decided earlier this year, the defendant argued at trial that he had failed to comply with an enforcement notice because the notice had not been properly served upon him, and he had not received it. However, the facts were that the defendant had been in discussions with the fire service prior to the premises audit, and was not only aware of the exact time and date that the inspection was to take place, but he was also aware that it was likely that an enforcement notice would be issued due to a number of breaches of the FSO that he was aware of. I argued that the only defence available to the defendant was one of due diligence under article 33, and that the defendant could not possibly argue that he had exercised all due diligence when he had simply ignored the fire service since the date of the audit. The judge agreed. He was convicted.
These non-binding cases indicate that it is likely, in most cases, that the guidance documents must be followed or recommendations matched; fire alarms should be fixed very quickly when faulty, and ignoring or turning a blind eye to potential breaches will prevent reliance upon the defence.
So, if breaches exist, can due diligence ever be successfully argued? My view is that it could, and that the most likely scenario would be where the responsible person or person with control of the premises has instructed and paid for a properly qualified and experienced third party to carry out the requisite fire safety precautions. Surely this could constitute due diligence? After all, what more can a non-fire safety expert do?
That is not to say that it would be a defence in every situation. Last year I was involved in prosecuting a case where a care home owner had instructed a fire risk assessor to carry out a risk assessment which later turned out to be unsuitable and insufficient. (The fire risk assessor was prosecuted). The care home owner sought to rely upon the fact that they had instructed a suitably experienced fire risk assessor, stating that they had relied upon his expertise. However, it was argued that the risk assessment was so deficient, that any reasonably experienced care home owner should have realised that it was not suitable and sufficient, and should not have placed reliance upon it. The court accepted that argument, and the care home owner was successfully prosecuted.
To date, I am not aware of any fire safety cases where due diligence has been successfully argued. Clearly, where breaches of the FSO have been found in premises for which the defendant is responsible, it is likely to be very difficult for the defendant to argue that all reasonable precautions were taken and all due diligence exercised to avoid the commission of an offence.
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