Employers, building owners, and those in the fire and rescue service are all being affected by the enforcement provisions of the Fire Safety Order, which came into force a year ago. Hazel Padmore of law firm Browne Jacobson explains what they mean.
Introduced in England and Wales in October last year, the Fire Safety Order represents a fundamental shift to a new balance of responsibility when it comes to fire safety. Consolidating previous legislation, including the Fire Precautions Act and the Fire Precautions (Workplace) Regulations, the Order abolished fire safety certificates for non-domestic premises, shifting the burden of responsibility onto a ‘responsible person’ for each commercial building – i.e. an employer, building owner, occupier or anyone with a contractual responsibility for fire safety or maintenance.
The Order applies to all non-domestic premises, with a number of specific exceptions such as offshore installations, mines, fields, woods and other agricultural land. It also applies to common areas of residential developments, including common parts of multiple occupation houses. The extent of the duties imposed upon the property owner depends on the particular use of a premises, and also on who is classified as the ‘responsible person’ under the Order.
In the case of a workplace, an employer is considered the responsible person in respect of areas within his or her control. Those areas outside, such as common stairways, halls and landings, will be the responsibility of the owner. In relation to premises used in connection with a trade, business or other undertaking (whether profitable or not), the responsible person will be the person who has control either as occupier or owner. Where not used for these purposes, the owner will be considered the responsible person.
In addition, any individual with a contractual responsibility for fire safety or maintenance will be deemed the responsible person in respect of the areas within their control.
The main duty imposed by the Order is the obligation to take general, reasonably practicable fire precautions to ensure the safety of people using the building, those lawfully on the premises and those in the immediate vicinity who would be at risk from a fire on the premises. To identify the necessary fire precautions, the responsible person must undertake regular, suitable and sufficient assessments of the fire risks to which individuals are exposed.
In addition, the responsible person has a range of specific duties relating to fire safety, listed below. Most importantly, the Order creates a criminal offence of failing to comply with these following duties:
– ensuring that premises are equipped with appropriate alarms, detectors and firefighting equipment
– ensuring the regular maintenance of premises and fire safety equipment
– keeping emergency routes and exits clear
– establishing appropriate procedures for emergency situations
– providing information and training on fire safety, individual risk assessments and safety procedures
– providing information on fire safety procedures and on the nominated ‘competent persons’ (individuals nominated by the responsible person to assist with protective and preventative measures) to non-employees when working on the premises
Although the new provisions were introduced with the aim of shifting responsibility for fire safety, the intention was not to impose a significant new burden on property owners already complying with previous legislation. Where a fire certificate has previously been issued, providing fire precautions have been properly reviewed and maintained, this will provide property owners with helpful information when conducting risk assessments under the new Order. Similarly, previous risk assessments, where these have been appropriately reviewed, may prove a good foundation for the more rigorous assessments required under the Order.
To help property owners and employers comply with the new Order, the department of Communities and Local Government (CLG) has published a number of guides, including general advice and specific guides suitable for types of premises. These can be obtained at www.communities.gov.uk.
Enforcement
As part of their new enforcement role under the Order, fire and rescue authorities have a key role to play in providing advice to individual businesses and other non-domestic premises on how to comply with the legislation. However, to ensure community-wide fire safety, fire and rescue authorities have a crucial responsibility under the Order to issue alteration, enforcement and/or prohibition notices to individuals responsible for premises which fail to comply and, where necessary, to bring prosecutions in the criminal courts.
The power to issue notices when a premises constitutes a safety risk, or fails to comply with legislation, is not new. Under the terms of the Fire Safety Order, however, clear conditions have to be met when issuing a notice regarding timing, the recipient, and the information the notice must contained.
Failure to meet these requirements is likely to result in the notice being deemed ineffective if appealed, and may prejudice any future prosecution. One particular area of importance is the drafting of Prohibition Notices. Extreme care must be taken to ensure that the extent of prohibition or restriction is clear, and set out in terms fully understood by the responsible person. Any vagueness in the terms of the notice will prove favourable to the recipient in either an appeal or subsequent prosecution.
In addition, where a notice sets out measures to be taken to remedy a breach, the responsible person must fully understand what he or she is required to do. While it is not mandatory to present such information, where this is provided it will be deemed part of the notice by a court. Any ambiguity as to what is expected of the recipient is likely to result in the notice being considered invalid.
Investigation
Bringing about a prosecution is not a simple task, and may be new ground to many fire officers. Effective investigation management and securing of evidence will be key to ensuring that enforcing officers are in a position to bring court proceedings, where individuals fail to comply with their duties under the Order.
The first step is the timely and effective securing of evidence. This can take a number of forms, including witness statements, exhibits, photographs and video footage. Before conducting a visit to the premises in question, fire officers should carefully consider how evidence can be best obtained and preserved.
Officers should try to secure witness statements from anybody potentially able to provide relevant evidence. Witnesses should be approached at the time of the visit to the premises, making sure their details are obtained. Statements should be taken as soon as possible to ensure the accuracy and reliability of the evidence provided. Witness statements should also be used to provide a detailed and accurate account of an officer’s involvement in an investigation. These should be prepared immediately after a site visit or inspection, and with reference to any notes made.
Fire officers are entitled to request any records necessary to the inspection, including risk assessment forms, training records and service/maintenance records for firefighting equipment. These should all be kept by the responsible person. Officers are also permitted to take copies of any relevant documents. So careful thought should be given to whether or not such documents are likely to be used as evidence of an alleged breach or non-compliance with the Order.
Photographic material and video footage can prove extremely important sources of evidence, particularly where an allegation relates to the state of operations at the premises under investigation. Such material is difficult to challenge or refute, and in some cases can provide sufficient proof in itself.
It is vital that the investigating officer refers to any documents, samples photographs or videos taken from the premises in his witness statement, and confirms when and how these were obtained. This will ensure that items can be used as formal evidence during court proceedings.
Interview under caution
If evidence gathered gives rise to suspicion that an offence has been committed under the Fire Safety Order, inviting the responsible person to attend an interview under caution should be considered. It is important to note that an interview under caution is a voluntary procedure, conducted in accordance with the Police and Criminal Evidence Act 1984 and related codes of practice. Fire and rescue service officers have no power to compel an individual to attend an interview under caution. However, if conducted, the interview will form part of the evidence at any subsequent court proceedings.
An interview under caution allows fire officers to question a responsible person regarding the requirements imposed by the Order and the alleged breach. An interview may lead to the disclosure of information that will assist the investigation, or even result in an admission. In addition, if a defence is to be raised, then an interview under caution may clarify this, allowing the fire and rescue authority to evaluate the strength of the case before presenting this to the magistrates’ court.
To reiterate, however, it is essential that an interview under caution is only carried out where there is reason to suspect, on the basis of the evidence secured, that an offence has been committed. The responsible person should be contacted in writing and advised of his or her right to obtain independent legal advice. The interview cannot be used to secure information from somebody not suspected of committing an offence.
Having gathered evidence and possibly conducted interviews under caution, the enforcing officer will next need to determine whether or not to prosecute. Firstly, he or she will need to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, based on the nature and strength of the evidence secured. If there is sufficient evidence to prosecute, the second stage is to consider whether or not a prosecution is in the public interest.
In most cases, the risk to public safety in itself will be sufficient to meet the public interest test. However, other factors may play a key role in this decision:
– the level of seriousness of the offence
– the extent of risk to others as a consequence of the offence
– the position of the responsible person
– any previous fire and rescue service involvement at the premises
– any advice or warnings provided about the circumstances which gave rise to the offence
– the organisation’s history of compliance with other fire safety matters
Court proceedings are a fire and rescue service’s means by which to conduct their function as enforcers of the new rules. They also have the benefit of reinforcing the importance of fire safety and the need for property owners, employers and individuals in control of premises to comply with the duties imposed by the Fire Safety Order.
A successful prosecution has a number of consequences, including the recording of a conviction against the responsible person and the imposition of a penalty, which in some instances may run to imprisonment. Overall, then, it is clear that as well as shifting the balance of responsibility for fire safety within commercial buildings, the Order confers upon fire enforcement officers an extremely important role to play in investigating potential offences, as part of their efforts to ensure fire safety in the community as a whole.
Hazel Padmore is a health and safety prosecution expert at law firm Browne Jacobson. For more information call 0115 976 6000 or visit www.brownejacbson.com.
