Laying down the law - June 2017

THE DUE diligence defence is common throughout regulatory law, such as health and safety and food safety, but the relevant legislation does not usually detail what precautions, procedures and safety measures will be required to satisfy the defence. In the area of health and safety there is a raft of case law, which can guide defendants as to the way in which the courts have approached due diligence in past cases, but I am not aware of any helpful case law in relation to due diligence in fire safety cases.

Article 33 states: “It is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence”. Significantly, article 33 does not provide a defence of due diligence to employers in relation to the failure to take general fire precautions to ensure the safety of employees (article 8 (1) (a)), due to the strict liability nature of that article; or in relation to the elimination or reduction of risks from dangerous substances (article 12).

In all of the cases I have conducted under the FSO, the due diligence defence has only been raised as an issue in about a dozen cases. It is clear from these cases that the court will set the bar for due diligence at a very high level. In my very first case under the FSO back in 2007, the significance of the guidance documentation was raised in the context of due diligence. The defendant effectively argued that the guidance documents were just that and as such there was no strict rule that had to be followed.

The judge found against the defendant, stating that if a defendant did not wish to follow the guidance provided by the government, alternative measures that achieved the same level of compliance with the FSO must be carried out instead. Due diligence could not be established where guidance had been simply ignored or where less effective measures had been carried out. 

In one of my cases, a case that went to trial, I opened the case by stating that an initial inspection by the fire service had discovered a faulty fire alarm system within a restaurant with living accommodation above, and that when they returned a month later, the alarm system was still in the same condition. At that point the judge stopped me and asked the defendant’s barrister, if a due diligence defence was being pursued. She answered that it was. 

The judge then asked how on earth such a defence could possibly be pursued when an alarm system had not worked for a period of one month. Feeling like I was on a winner, I pointed out to the judge that the alarm system was not actually rectified until five months after that. Five minutes later the defendant entered a guilty plea.

In another slightly unusual case, the defence was raised in a more indirect way. The defendant was the landlord of a House of Multiple Occupation (HMO). The fire and rescue service visited it and deemed the premises totally inappropriate for such use and the landlord was charged with numerous offences. She claimed the premises had been let to a single family who had then sublet the premises to other individuals without her knowledge. Effectively, she was asserting that she had taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence by letting the premises as a single private dwelling.

As prosecutor, I argued that such a defence could not be satisfied, as the defendant was effectively on notice that the premises were not safe to be used as an HMO, and was, therefore, under a duty to make sure that they were not used as such. I argued that even the most cursory checks would have revealed that the premises were being used as an HMO. The jury agreed and the defendant was convicted.

To date, I am not aware of any fire safety cases where due diligence has been successfully argued. Clearly, where breaches of the FSO have been found in premises for which the defendant is responsible, it is likely to be very difficult for the defendant to argue that all reasonable precautions were taken and all due diligence exercised to avoid the commission of an offence.

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