Heralded as the biggest overhaul of fire safety legislation in 40 years, the Regulatory Reform (Fire Safety) Order (FSO) 2005 was introduced in April 2006 with the intention of streamlining existing legislation, reducing the burden on business and improving safety by allowing fire authorities (the bodies responsible for fire brigades in each area) to concentrate on high-risk premises; all of which are laudable aims. But over three years on what’s been the reality?
Given that FSO 2005 was such a radical departure from 40 years of fire safety legislation, its introduction clearly required:
- FSO 2005 to be carefully drafted to ensure it met the aims behind its introduction;
- clear guidance to be produced for businesses and enforcers to explain what its provisions required; and
- comprehensive training to be given to fire officers in their new roles.
Unfortunately, guidance has been vague, certain key provisions of FSO 2005 are unclear, and the training of fire officers has been patchy and inconsistent. If this were not enough, many fire authorities have not adapted well to their new enforcement role, leading to inconsistent and erratic enforcement. This article explores the different approaches taken to enforcement and some of the problems that have arisen as a result.
A new approach?
Fire safety legislation is not a unique area of law; it is a specialised subset of health and safety legislation, and must be interpreted in the context of the case law that has grown with the health and safety legislation.
The importance of recent heath and safety case law, such as R v Chargot Ltd (t/a Contract Services) & ors [2008] cannot be underestimated.1 In Chargot, the House of Lords held that:
‘When legislation refers to risk, it is not contemplating risks that are trivial or fanciful. It is not the purpose to impose burdens on employers that are wholly unreasonable.’
This view was affirmed in October by the Court of Appeal in R v EGS Ltd [2009].2 Instead, the legislation is aimed at ‘material risks to health and safety which any reasonable person would appreciate and take steps to guard against’, emphasising that enforcement must take into account the circumstances of each case.
Similarly, FSO 2005 does not require duty holders to ensure that premises are risk free, but rather to ‘take such fire precautions as will ensure, so far as is reasonably practicable, the safety of any of their employees’ and take steps as ‘may reasonably be required’ to ensure the premises are safe for third parties (see article 8).
Throughout FSO 2005, the use of phrases such as ‘reasonable practicability’, ‘reasonableness’ and ‘appropriateness’ underpin the fundamental principles that must be taken into account when enforcing its provisions.
If more evidence was needed for this proposition, then consider how the offences themselves are constructed under article 32. To commit most of the offences created by FSO 2005, not only must there be a breach of the primary obligation set out in FSO 2005 (for example, to have a suitable and sufficient risk assessment), but in addition that breach must also put ‘one or more relevant persons at risk of death or serious injury in the case of fire’. One or the other element is not enough, both are required.
The risk element of the offence can essentially be broken down into three parts:
- ‘one or more relevant persons’;
- ‘risk of death or serious injury’; and
- ‘in the case of fire’.
Each of these may present a barrier to the offence being made out.
This difficulty was recently discovered by one fire authority that had found what it believed to be breaches of FSO 2005 during its investigation of empty premises in the weeks following a fire that ultimately resulted in the premises being condemned. The fire officers did not gain access to the premises to investigate until operational fire fighting was ongoing, and all members of the public and staff had been evacuated. As a result, it was not able to prove that these breaches presented a risk to any relevant persons (as there were not any present when the investigation was ongoing, save for the officers themselves who were hardly at risk) and had no evidence of the state of affairs at the time of the fire. Accordingly the offence could not be made out.
‘Risk of death or serious injury’ is also of interest. It is clear from these words that FSO 2005 is not talking about trivial or fanciful risks. The risk must be sufficient that one might die or be seriously injured if the risk eventuated in the case of a fire – so the sheer presence of some material on the route to a fire exit, while bad practice, will not constitute an offence unless and until its presence creates a risk of death or serious injury. But, like mainstream health and safety, that risk need not eventuate for the offence to have been committed.
It was the clear intention of Parliament that risks that are trivial or fanciful would not give rise to criminal offences, or even a requirement to act. So, why is it that we are seeing such over-zealous enforcement action and, in the recent case of Shell, a massive fine?3
best of intentions?
Some fire authorities rely on their enforcement powers (eg enforcement and prohibition notices, as well as prosecutions) to drive through measures that are over and above those required by FSO 2005; a practice that is undoubtedly driven by fire authorities’ desire to attain the highest levels of safety possible. Admirable though this might be, this practice overlooks the legislative framework within which fire authorities must operate and the fact that it is down to business to decide how best to protect against the risks it faces.
In a recent case, a national hotel chain operator was served with an enforcement notice requiring it to improve its fire alarm systems on the basis that the use of heat detectors in bedrooms was, in the view of the fire authority, inadequate.4The fire authority alleged that smoke detectors should be fitted. The hotel operator relied on the fact that its systems had not only been in place for all the years it had operated under a fire safety certificate but, more importantly, that it still complied with British Standards that had been reviewed since the introduction of FSO 2005. The case was eventually referred to the Secretary of State for a determination under article 36 of FSO 2005 (an often overlooked and little-used procedure). The Secretary of State held that the hotel operator had reduced the risk as far as reasonably practical and the use of heat detectors complied with the provisions of FSO 2005. The fire authority’s argument had a superficial attraction and if the hotel operator had not challenged the enforcement action it would have had to spend over £2m to install smoke detectors across its estate, which, as the Secretary of State’s determination highlighted, was unnecessary.
This incident of over-zealous enforcement is not isolated. An enforcement notice was recently served when a company refused to train all of its employees to use fire extinguishers and another company faced enforcement action unless it issued 15 whistles instead of eight as part of a temporary warning system. The same company was also threatened by the same officer with another notice alleging a further 99 breaches.
Prosecution practice: kitchen sink optionaL
There are many cases that bear evidence to the fact that fire authorities are not adopting a proportionate risk-based approach. 15, 20 or even 35 charges are not uncommon. Nor, unfortunately, are fire officers boasting about how many enforcement notices that they have issued in the past fortnight.
Take two recent examples. In June oil giant, Shell, entered a guilty plea to three breaches of the FSO 2005. The pleas, in relation to a failure to review the fire risk assessment, which apparently had not been reviewed since 2003, and two counts of failing to maintain premises and equipment efficiently, represented approximately a fifth of the original charges brought and Shell recovered its costs in relation to the charges that were not proceeded with. Nevertheless, despite there being no injury, Shell was still fined £300,000 plus £45,000 costs. This is the largest fine under FSO 2005 and is enough to make anyone sit up and take notice.
More recently, a retailer was prosecuted following a two-year investigation into a serious fire at one of its stores in 2007. The fire resulted in the building containing the store ultimately being demolished and its cause was never determined, but no blame was ever attributed to the retailer for the fire. Nevertheless, the retailer found itself facing 35 charges alleging a wide range of breaches of FSO 2005. The retailer argued throughout that it would be willing to plea to an indictment that fairly reflected its breach of duty, but could not do so if there were 35 charges as it was totally out of proportion. The court appeared to agree and told the prosecution that the absolute maximum number of charges that they would even begin to contemplate at trial would be 15, but that it should be thinking of fewer than that. The judge said that to have a trial in this case would be ‘scandalous’. Pleas will now be entered to just two charges.
Judicial patience for this type of prosecution activity is fast dissipating, as Dyson LJ made clear in the health and safety case EGS:
‘… those cases which proceed to trial should be vigorously case managed by the nominated judge, who should be astute to ensure, in advance of the trial, that the parties confine the case to the issues that really matter and that the case does not become overloaded.’
It could not be any clearer. Cases that involve dozens of unnecessary charges that cloud the real issue should not be brought. Charges should simply address the central mischief. Hopefully, the fire authorities are learning.
But it is not all bad. Most authorities appear willing to engage in some form of dialogue or negotiation in relation to certain issues. While they may be passionate about fire safety, they are becoming more willing to discuss issues with businesses.
A new sentencing benchmark?
There has been much concern that Shell might have set the benchmark for fines in fire safety cases, so where does that leave business?
Two things are undoubtedly true about Shell’s fine. First, while the fine is large, in the context of Shell’s business it is not that significant and this may have been taken into consideration by the judge when determining the level of the fine. Secondly, whatever way one thinks about it, a fine of £300,000 for failing to update risk assessments, and two other minor charges, is totally out of alignment with health and safety fines. If Shell had been prosecuted under health and safety legislation rather than fire safety, the fine is likely to have been in the region of 25% of that received by Shell. A fine of £300,000 would only be expected following a fatality.
Some significant weight has recently been added to this argument in the form of the Sentencing Advisory Council’s guidelines for corporate manslaughter, and health and safety offences involving a fatality. This guidance, issued on 27 October 2009, states that the appropriate fine:
‘… will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.’
Clearly, a failure to update a risk assessment should not be treated more seriously than the courts are being asked to treat cases involving a fatality, and Shell should be viewed in that context. However, neither before nor after Shell is there any authoritative statement on fire safety sentencing and until there is Shell remains a concerning precedent.
Fire safety should be as high on the corporate agenda as health and safety. All the same rules apply: comprehensive risk assessments, clear fire safety policies, comprehendible training, (particularly regarding evacuations procedure of which you can demonstrate staff understanding) and regular reviews, are all necessary and should be in place. If not, and the inspector visits, you are at significant risk of expensive enforcement action.
By Hilary Ross, partner, and Dominic Watkins, associate, Bond Pearce LLP.
E-mail: hilary.ross@bondpearce.com; dominic.watkins@bondpearce.com.