|Article||Gov cases||Gov stats %||BB cases %*|
The Government statistics for fire safety enforcement between April 2018 and March 2019 were published on 3rd October 2019. We have now incorporated those figures into our study (which takes the official figures from 2009 to March 2019 and my own cases between 1 October 2006 to date).
All offences under the Fire Safety Order are prosecuted under Article 32. The most common offences relate to failures to comply will with Articles 8 to 22, but breaches of other Articles may also lead to an offence being committed. For any breach of Articles 8 to 22 (or A38) to become an offence, the breach must have placed relevant persons at risk of death or serious injury in case of fire.
The vast majority of Articles prosecuted under the Order relate to breaches of Articles 8 to 22.
Other offences might relate to breaches of prohibition or enforcement notices, (Articles 30 and 31) or to A27 (such as obstructing an officer in his duties). To prove an offence in relation to these Articles it is only necessary for the prosecution to prove that the Articles were breached and not that they necessarily led to a risk of death or serious injury.
The Government statistics in relation to the charges prosecuted under the Fire Safety Order show clearly that the most common breaches are found on emergency routes and exits.
Between 2009 and 2018 defendants were convicted of breaching Article 14 (A14) on 464 occasions. This represents 22.8% of all charges prosecuted under the Order. The statistics in relation to my own cases also reflect that A14 is the most commonly prosecuted article in the cases I have been involved with, as it represents 32% of all charges prosecuted.
The main reason for this is that A14 covers numerous aspects of emergency routes, including:
- the need to keep exit routes clear
- the requirement to lead as directly as possible to a place of safety
- an adequate number of emergency routes and exits
- the opening of emergency doors
- locks on emergency doors
- emergency lighting
A breach of any one of these requirements could lead to a charge under A14.
The second most common FSO offence nationwide relates to the breaches of A8. This involves the duty to take “general fire precautions”. “General fire precautions” are defined in A4, which contains elements of duplication with Articles 9 to 22. For this reason, many fire authorities prosecute all matters under A8 as it contains a number of the requirements outlined in Articles 9 to 22 without increasing the number of charges to put before the Court.
One area which is not covered in Articles 9 to 22 is a requirement to take measures to reduce the risk of fire and the risk of the spread of fire on the premises. Any issues relating to fire separation and protection are usually therefore prosecuted under A8.
The other notable aspect of A8 is that it imposes a “strict liability” upon employers to take such general fire precautions as necessary to ensure the safety of employees. The failure by employers to comply with this article will automatically lead to a conviction because there is no due diligence defence to A8(1)(a). (See A33)
The Fire Safety Order replaced The Fire Precautions Act 1971 as the enforcing legislation for fire safety matters in 2006, and it adopted an approach similar to the Health and Safety at Work Act 1974 which required employers/those responsible for premises to carry out risk assessments, identifying and minimising risk of harm. The corresponding requirement under the FSO is contained in A9, and it can be seen that this is the third most popular charge with 312 convictions, representing 15.8% of all charges. In my cases, this is the second most popular charge representing 16% of charges, but a consistency can be seen between the official figures and my own.
Primarily, A9 deals with the failure to carry out a suitable and sufficient fire risk assessment or failure to review an existing risk assessment. For me, it is the most fundamental requirement and responsibility under the Order as it represents the requirement to carry out and continue a process of minimising risk and keeping people safe, which is the main purpose of the legislation.
Fire detection/alarms (A13) and premises maintenance (A17) make up the top 5 charges prosecuted under the Order.
One point of interest from the government figures is the increase in prosecutions (5) under A27 in 2018/19. Surprisingly, there had been only 10 prosecutions in 12 years for failing to assist in identifying the responsible person or obstructing a fire officer. Last year’s prosecutions take those figures to 15, which is still surprisingly low, as I am acutely aware of the difficulties experienced by fire officers in identifying responsible persons and other persons with control. It is significant, that offences under article 27 are “summary only” and can only be dealt with in the Magistrates Court. This means that all such charges must be commenced within 6 months of the date of offence, which is one of the reasons I believe it has been used so infrequently. Most prosecutions take between 6 to 12 months to prepare and obviously this would exceed the time limit for the serving of such charges.
43 prosecutions for breaching prohibition notices shows that a relatively large number of responsible persons do not treat the serving of notices under the Order as seriously as they should. In my experience, A31 breaches are sentenced pretty heavily by the courts.
I was also surprised to see 51 prosecutions under A10 “Principles of Prevention to Be Applied” – as this is not an article I use regularly.
What can be seen by looking at the figures as a whole is that fire services have used the very wide ambit of the Order to bring people to justice, and this would suggest that the Order has succeeded in dealing with all manner of fire risk management shortcomings, which was clearly the intention and purpose of the Fire Safety Order.
*Blackhurst Budd cases.
Warren Spencer – Fire Safety Solicitor
James Aird – Fire safety Lawyer