Laying down the law - September 2018

DAME JUDITH Hackitt’s interim report identified competency as an issue in relation to fire risk assessors. Presently, Article 18 deals with competency, but surprisingly, this Article does not apply to those appointed to carry out fire risk assessments. This is confirmed in the ‘Perceived Insights’ Guidance document which clearly states that the requirement for competency ‘does not relate to the carrying out of a fire risk assessment’. This is an Article which will have to either be amended or re-interpreted should accreditation become a requirement.

Article 27

There are considerable concerns regarding the enforcement of Article 27 and the way in which the Order treats those who obstruct fire officers less seriously than those who don’t. In my view, Article 32 (7) should be amended immediately so that more serious sentencing options are open to the court when dealing with those who deliberately obstruct an investigation or fire officers during the course of their duty. Presently, those who obstruct can only be dealt with summarily by Magistrates Court with a limited small fine, and that is provided the fire services involved can put together a prosecution within the tight six-month timeframe.

More guidance is also needed in relation to the application of Article 27. Fire officers are still confused as to their powers when attempting to gain access to premises of concern, and because the Order is silent in respect of many of those powers, more clarification is required. A power allowing forced entry may be appropriate if RP’s are deliberately placing relevant persons at risk of death or serious injury – or are ignoring Prohibition or Enforcement Notices.

Reform, amendment or clarification is also required in relation to the service and application of enforcement and prohibition notices. Magistrates courts are frequently confused regarding their powers under the Order in relation to enforcement and prohibition notice appeals. The Order does not provide assistance in respect of legitimate grounds of appeal, nor does it outline the effects of the appeal process upon the national register for enforcement and prohibition notices.

Article 32(3)(b)

The two-year maximum prison sentence needs to be reviewed. It is not in line with the Health and Safety Sentencing Guidelines, which do not apply to fire safety cases. I have dealt with four fatality cases where the police have initially been involved, investigating either arson or gross negligence manslaughter. The police have not proceeded with a prosecution any of the cases and it has been left to the fire authorities and their legal representatives to explain to the bereaved families why the sentences are so low.

Taking into account the one third reduction for a guilty plea the maximum sentence is effectively 16 months, even where a fatality has occurred.

The sentencing guidelines

The preamble to the Health and Safety Sentencing Guidelines specifically excludes fire safety cases. Pressure should be brought upon the Sentencing Council to adopt a similar approach to fire safety cases to take account of the reduced risk of fire occurring, but to take account of the legislation which considers breaches which place relevant persons at risk of death or serious injury in the case of fire.

The present sentencing process follows guidelines set down from the case of R.v Howe and Sons from 1999, which was not a fire safety case, and which is now out of step with the Guidelines referred to which deal with Culpability and Risk specifically.

These are just some areas that would benefit from reform, but clearly, the final Hackitt report will deal with much wider issues, and any reform to the FSO would have to fit into ‘the Golden Thread’ vision which has been put forward.

Warren Spencer is managing director of Blackhurst Budd Solicitors. You can see more articles from Warren at www.firesafetylaw.co.uk