Home>Fire>Enforcement>To be or not to be responsible – that is the RR(FSO) question

To be or not to be responsible – that is the RR(FSO) question

11 April 2018

When it comes to the Regulatory Reform (Fire Safety) Order 2005, all businesses must ensure they understand their duties and are careful how they communicate in the event of an investigation.

This was the clear message from the mock fire-safety trial conducted in the Fire Safety Event Keynote Theatre this morning (10 April).

With legal experts from Pinsent Masons playing the roles of prosecuting counsel, defence counsel and defendant, and the audience fulfilling the role of the magistrate, the case dealt with an alleged breach of Article 32 of the RR(FSO) relating to a failure to comply with a Prohibition Notice. In the dock was one “Percy Russell”, owner of a property used as a single private dwelling, apart from a fast-food restaurant on the ground floor. He entered a plea of ‘not guilty’.

The “court” heard that on 8 January 2016, the premises was attended by “Watch Commander Richards” from “Lakeside Fire & Rescue Service”, who had made an appointment with the restaurant operator, “Mr Long”, to carry out a fire safety audit in accordance with the RR(FSO). On arrival, however, Watch Cdr Richards was met by Percy Russell, who explained that Mr Long was in charge of the restaurant part of the premises but that he, Mr Russell, was the owner and, in fact, lived on the upper floor of the building.

During the visit, a bedroom was discovered in the middle of the kitchen and food-preparation area, and Mr Russell removed the bed in the presence of Watch Cdr Richards. After then witnessing an exchange between Russell and Long conducted in a foreign language, Watch Cdr Richards asked Russell who was in overall control of the premises, to which Russell replied: “I am.” Consequently, he was served with an enforcement notice prohibiting the use of the area in the kitchen for the purpose of sleeping. Russell later signed the notice to say that he understood it.

Some six weeks later, Watch Cdr Richards received a phonecall from a workman at the restaurant, requesting him to come to inspect the work being done to remedy the situation. When he arrived, he noticed straight away that the bed had been put back, complete with bedding. While he was there, a young woman came into the room and removed a coat that had been hanging on the back of the door. Consequently, Mr Russell was charged with failing to comply with the earlier Prohibition Notice.

At this point in the “trial”, defence counsel Katherine Metcalf called Russell. Among the details he confirmed were that he lived on the upper floor, there were separate entrances to that floor and the ground floor, he makes a living as a full-time landlord and has several properties in the city, he is rarely on the premises during the day and has no involvement with Mr Long’s business.

As to why he was there on the day Watch Cdr showed up for his appointment with Mr Long, Russell explained: “I wasn’t contacted about the audit, Mr Long was, and I wanted to assist him, as he doesn’t speak English very well. He is completely in control of the ground-floor part of the building. The bedroom is down to him. I told him he couldn’t sleep there, so he removed the bed and, as far as I was concerned, the matter was resolved. 

“I don’t know who put the bed back but I don’t think the woman, who is Mr Long’s sister, was using it to sleep there at the time. In any case, this was completely out of my control.”

He was asked by Ms Metcalf why, if Mr Long was responsible for the ground floor, he – Russell – accepted the Prohibition Notice, to which he replied: “Because Watch Cdr told me I was the responsible person, and who was I to contradict him – even though, as far as I was concerned, Mr Long was responsible.”

When asked if he could have done more to prevent the room from being used for sleeping, he claimed that he had done all he could.

Then it was the turn of prosecuting counsel, Laura Page, who started by asking Russell if he had any kind of tenancy agreement with Mr Long. “Yes,” he replied, “but not in writing.” He repeated his claim that Mr Long was responsible for the ground floor but then acknowledged that the fire-alarm system is on the upper floor and so Mr Long had no control over that. 

Ms Page then wondered why he hadn’t appealed the Prohibition Notice on the grounds that he wasn’t the responsible person, and why he had turned down an invitation to attend an interview under caution, at which he could have made his case. Russell replied: “I took Watch Cdr Russell at his word that I was responsible because the property is mine – even though Mr Long is partially responsible as well.”

Asked if he knew it was an offence to fail to comply with an enforcement notice, Russell said he was aware of that but again, he felt compliance was up to Mr Long. Ms Page then summarised the situation, saying: “So, you accepted the Prohibition Notice, thanked the Fire Service for its input, didn’t appeal the Notice and didn’t attend the interview. Yet you still say Mr Long was responsible.”

Defence counsel Ms Metcalf then gave her take on the situation: “The prosecution says that because there was no written agreement, and because the alarm system was in Mr Russell’s part of the property, he was responsible. But I ask you, what more could he have done to ensure the Prohibition Notice was complied with? His defence is that he took all precautions to ensure it was complied with. Our case is that Percy Russell cannot be held responsible for the unforeseeable actions of his tenant, and that he took all reasonable precautions to ensure the Prohibition Notice was complied with. I urge you, therefore, to find him not guilty.”

Ms Page countered this by pointing out that “Percy Russell identified himself as the person with overall control. He didn’t dispute this when served with the enforcement notice and didn’t attend an interview under caution to put forward his side.”

At this point in the proceedings, the audience, i.e. the “magistrate”, was invited to deliver its verdict via a show of hands. The overwhelming majority felt Mr Russell was guilty.

As to what he could have done better during Watch Cdr Richards’ initial visit, Ms Page was clear: “He should have been more aware of the meaning of ‘responible person’ under the RR(FSO). He should have had a written tenancy agreement with Mr Long, making the responsibility of each party clear. He should have made clear when the Fire Service arrived who was the responsible person. And he could have appealed the Prohibition Ntoice on the basis that he wasn’t, in fact, the responsible person.”

Ms Metcalf added: “He wasn’t prepared for the Fire Service to come back, and left it to his workman to deal with them. What businesses need to remember is that how you conduct yourself throughout investigations and proceedings is crucial. When communicating with the regulatory authorities, beware of inadvertently accepting responsibility when you don’t, in fact, have it. And be very careful regarding incidental comments.”

Mr Russell was fined £5000 plus costs. The mock case was actually based on a real-life case in which defendant was also found guilty.