The 1st October, 2016 was the 10th anniversary of the commencement of the Regulatory Reform (Fire Safety) Order 2005. On that date I had no idea that I would become so familiar with this very niche piece of legislation.
In early 2005 I had been instructed by the owner of a Blackpool hotel to defend proceedings brought under the Fire Precautions Act 1971. The case resulted in a very interesting trial during which I argued, at length, that my client was not an ‘occupier’ under the terms of the FPA 1971. I was helped in this regard by the fact that the 1971 Act did not provide a definition of ‘occupier’ for the purposes of that legislation.
At the end of the trial I cheekily commented, in passing, that I also prosecuted cases for the DWP, and that should the fire service need help prosecuting cases in the future – I was all ways available. (I was aware that during the course of the proceedings their in-house solicitor had left the service.)
Fortunately, they took me up on my offer. This led to me conducting half a dozen cases under the FPA 1971, which provided an excellent grounding in basic fire safety principles and terminology, for what would be a significant turning point in my professional career.
In November 2006 I was instructed by Lancashire FRS to conduct an enforcement notice appeal under the FSO. Obviously, when I looked for legal guidance and interpretation on the legislation, I was disappointed and frustrated to find that there wasn’t any!
The Order had been drafted following a consultation paper on reform of fire safety legislation which had been published in July 2002. It is interesting to consider the summary of proposals:
• so far as possible general fire safety legislation should be reformed to create one simple fire safety regime applying to all workplaces and other nondomestic premises
• the regime should be risk assessment based with responsibility for fire safety, resting with the person responsible for the premises
• protection should be provided to persons inside a building and those who might be affected by fire
• there should be no separate formal validation mechanisms a higher risk premises. Fire authorities would base their inspection programs on their assessment of the premises they considered to present the highest risk
• there should be a duty to maintain those fire precautions required under building regulations which are for the use and protection of the fire brigade
• there will be a new statutory duty fire authorities to promote community fire safety, have powers of entry for the investigation fires, and for a power to take away samples for testing.
The consultation paper found the fire safety provision (in 2002) was scattered among many different pieces of legislation and was at times inconsistent and difficult to understand. It was stated that the proposed changes would affect employers and virtually all those who are responsible for buildings to which the public may have access. Interestingly, the information and policy costs were estimated to be approximately £65 million.
Following the consultation paper the FSO draft, together with the proposals were put forward by a statement by the office of the Deputy Prime Minister in 2004.
But, despite the significant number of guidance documents in relation to fire risk assessments and premises; enforcement guidance from the communities and local government, and Jonathan Herrick’s extremely helpful CFOA guidance there has been no authoritative legal texts, case law or guidance in respect of the interpretation of the Order.
The only legal precedents available in respect of the FSO relate to sentencing principles. The first of those came in the case of New Look Retailers Limited in 2010 in respect of a case where offences had been committed in April 2009.
As far as I am aware, there have been no cases from the Court of Appeal dealing with the legal interpretation of the FSO. For me, the reason for this is obvious; those convicted of offences under the order are not willing to spend money on appealing convictions based on the finer points of fire safety law. I also believe that the number of fire safety cases which have gone to trial is very small. This means that most defendants plead guilty to fire safety charges and are therefore in no position to appeal those convictions following guilty pleas.
It is interesting when looking at summary of proposals which resulted from the consultation paper to see that liability was intended to rest with the person responsible for the premises. However, the resulting legislation went much further than that.
In 2010 I was instructed to prosecute the fire alarm engineer, Christopher Morris, for offences related to the certification of a fire alarm system which did not meet the British Standard. I have since prosecuted fire risk assessors for providing fire risk assessments which were not suitable and sufficient. Many readers will be aware of the case of O’Rourke, in which a bogus fire risk assessor was sent to prison for providing a woefully inadequate and quasi fraudulent fire risk assessment in respect of a hotel.
I have also prosecuted managing agents; designated premises supervisors; duty staff managers; local authorities and even brothel managers!
This is because the final Order attributed potential liability to any person with sufficient control to affect the safety of premises and not just to owners or employers.
Certainly the most notable change during the last 10 years has been from the courts. For the first 5 years defendants were sentenced on average, to a fine of £1000 per charge. Very few cases were passed by the Magistrates Court to the Crown Court for sentence. Now, it is unusual for Magistrates to accept jurisdiction for sentencing fire safety cases, despite the removal of the maximum fine limit of £5000, to an unlimited fine. Crown court judges are imposing significantly more custodial sentences (albeit usually suspended sentences) to those guilty of fire safety offences.
As regards the future of the Order, in my view, that will depend upon the budgets of fire safety departments and the policies of fire services in relation to enforcement and the prosecution of cases which are now being balanced with the duty to work with local businesses in the community to achieve compliance.