Falling foul of fire safety legislation can result in hefty fines, often in cases where there has been no serious injury or loss if life, as Susan Dearden explains.

It's the risk to life and limb, rather than actual  death or injury, which is driving fire safety prosecutions

However, businesses are also discovering - to their considerable cost - that it is not injury, but the risk posed if there was to be a fire, which is triggering prosecution under the Regulatory Reform (Fire Safety) Order 2005 (RRO).

Obligations imposed by the RRO
The RRO imposes duties on a defined "responsible person" to protect anyone who may be on or in the vicinity of the premises. A responsible person may be a corporate or an individual and includes employers operating from, and owners or commercial occupiers of, premises.

A responsible individual has a duty to ensure that a risk assessment is carried out to identify what needs to be done. They must also take "general fire precautions" to ensure, so far as is reasonably practicable, the safety of staff and others. "General fire precautions" include measures to reduce the risk or spread of fire. These include consideration of:

• the means, safety and efficacy of escape measures
• how any fire will be detected and tackled, and how warnings will be given
• arrangements for the instruction and training of employees on fire prevention and firefighting, minimising the risks and evacuation

The RRO created a number of new offences and inspectors have power to issue enforcement and prohibition notices and prosecute for breaches.

One offence created is the failure of a responsible person to comply with fire safety duties "where that failure places one or more relevant persons at risk of death or serious injury in case of fire".

Very similar to the Health and Safety at Work etc Act 1974, individuals may also face prosecution where a company is guilty, as a responsible person, for a breach of the RRO and that breach is, "proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer."

Where an offence has been committed due to "the act or default of some other person", that other person is also guilty of an offence and may be prosecuted regardless of whether or not there are also proceedings against the responsible person.

The offences clearly envisage, and the cases confirm, that guilt will be established simply for putting people at risk were there to be a fire, whether or not there is actually a fire. It is not a defence that an employee or someone nominated by a company has made a mistake. The only defence available is for offences where the charges include a failure to take reasonable precautions. In those cases, it is a defence that reasonable precautions and all due diligence were taken to avoid the commission of the offence.

Prosecutions and the court's approach so far
Even before the RRO came into force, an upper benchmark was thought to have been set for fire safety breaches under the Fire Precautions Act 1971 with the case of John Nevins, who ran the Brandon House Hotel in Suffolk. No fire had occurred and the prosecution arose following a routine inspection.

There were an unusually high number of aggravating features taken into account including Nevins:

• ignoring previous warnings about the breaches prosecuted
• deliberately continuing to ignore the requirements on him in order to save money
• being reluctant to co-operate with the investigation
• ignoring a prohibition notice

Nevins, who had assets of £10 million, was fined a total of £145,000 for an offence of failing to notify the fire authority of structural alterations and of contravening the terms of a fire safety certificate. He was ordered to pay prosecution costs of £49,988.

The comments of the judge hearing the matter in the Crown Court are indicative of the court's approach to these offences:

"First and foremost, people were put at risk. It is no answer to say...that there never was a fire, or even an increased risk of fire as a result of those breaches. That, no doubt, is true, but the case against the applicant was never put on the basis that there was an increased risk of fire as a result of those breaches, but that the breaches made it less easy for people to escape in the event of fire."

The Nevins prosecution predated the RRO but the charges brought against him are similar to those created by the RRO. Although most cases do not have the degree of aggravating features that Nevins displayed, it would appear that on RRO prosecutions the Crown Court is willing to take a harsher line on conviction, particularly if the defendant is a significant organisation.

The following three cases stand out in particular so far:

Shell International Limited - Crown Court, June 2009
The Shell building is a prominent London landmark in which about 2,700 people work. Two small unrelated fires occurred in the building, caused by contractors working there. No one was injured. An inspection followed the second fire and a prohibition notice was issued. The inspector's complaints related to:

• open and/or poorly maintained fire doors
• obstructions to fire doors and fire escape routes
• high fire loads
• no fire risk assessment review since 2003

There was no suggestion that any of these faults contributed to the fires or had aggravated the consequences of either fire.

Shell International Limited was prosecuted for 13 breaches of the RRO. It pleaded guilty to two counts, seven were dropped and it successfully defended a further four counts. In mitigation on the two guilty pleas it was submitted that none of the defaults had been an attempt to save costs, none were deliberate or reckless and no one had been injured or killed. Shell had co-operated extensively once the issues had been identified, taking immediate steps to remedy the breaches and it had no previous record.

The Crown Court imposed a fine of £300,000 plus prosecution costs of £45,000.

Co-operative Group Limited - Crown Court, April 2010
The Co-operative Group Limited was prosecuted for six breaches of the RRO which came to light following an inspection in September 2007. There had been no fire and no one was injured as a result of the breaches. The failures complained of were:

• locking rear emergency exit doors
• the use of a lock requiring a security code on an emergency door
• fire alarm call point in the storage area obstructed
• manager's insufficient fire safety instruction and training
• absence of regular alarm testing
• absence of early detection of fire in one area which would alert those in the manager's office and allow safe evacuation

The Co-operative Group Limited was fined £210,000 and prosecution costs in excess of £28,000.

New Look - Court of Appeal, November 2009
This prosecution followed a fire in April 2007 at New Look's Oxford Street premises. No one was injured but there were some aggravating features, including the alarm being switched off when it first sounded and staff ignoring smoke pouring out of a window. There were 150 people in the store at the time and another 300 were evacuated from neighbouring premises.

Initially 35 charges were brought against New Look. This was negotiated down to two on guilty pleas, with nine other charges taken into account on sentence. The issues complained of by the prosecution were broadly inadequacies in the risk assessment for the premises and inadequacies in staff safety training. The failures complained of were failures to:

• provide clear statements about fire alarm arrangements and testing
• clearly identify emergency escape routes
• make arrangements with neighbouring occupiers as to emergency procedures
• identify deficiencies or remedial steps in its risk assessment
• identify emergency escape lighting
• organise refresher training and fire drills
• keep an exit from a basement area clear
• electrically link the fire alarm system to the basement fire exit so that it would unlock in an emergency

New Look had no relevant prior convictions, took effective steps post fire and pleaded guilty promptly. No one suffered injury. Additionally the breaches admitted had not caused or contributed to the fire that occurred. It was, nevertheless, fined £400,000 and ordered to pay more than £136,000 in costs.

The court considered that these failures resulted in a system falling a very long way below the standard required and to be expected of a company of this size. It considered that as a result, the potential for real human tragedy was very real and an appeal against the level of fine was dismissed.

However, it is difficult to reconcile these high-profile and highly punitive orders with some of the other decisions made on prosecution under the RRO.

Central Recycling Group, December 2008
Central Recycling Group was convicted on charges brought when an inspection revealed breaches of the RRO. There had been no fire and no injuries as a result of the breaches. The issues complained of were:

• a seriously obstructed external staircase
• obstructed and inoperable fire exit doors
• obstructed, unmarked and unlit exit routes
• combustible material which was being stored against a boundary fence of a tanker storage area
• absence of any means to raise alarm in the event of fire in the main baling shed
• empty/discharged fire extinguishers

The company was fined £20,000 on five separate charges under the RRO and ordered to pay £10,000 towards prosecution costs.

Penhallow Hotel, May 2011
This RRO prosecution, which hit the headlines in May 2011, concerned the Penhallow Hotel in Newquay. Its owner, O&C Holdsworth PLC, was convicted on two charges relating to a failure to carry out a suitable and sufficient risk assessment, and a failure to ensure the hotel was properly equipped with detectors and alarms. A fire had occurred and three people lost their lives with five others injured.

You might have expected, given the level of fines imposed in cases where no loss of life occurred, a particularly savage sentence. In fact the company was fined £80,000 and ordered to pay £62,000 in prosecution costs. The only possible explanation for this, when comparing the penalties imposed on Shell, New Look and the Co-operative Group Limited where no one was injured, is that size and turnover of a defendant is of prime importance in determining the level of fine. The hotel in this case, though part of a chain, was reported as having an annual turnover of £2-3 million.

Practical considerations

Many of the prosecutions brought to date have two common features:

• multiple charges - though most seem capable of being negotiated down to a reduced charge sheet in return for a guilty plea
• unlike health and safety prosecutions, the potential for harm if there were to be a fire is just as important as harm actually caused

The recurring issues emerging in prosecutions, which companies need to take precautions to avoid, are:

• failing to have and regularly review an adequate fire risk assessment
• failing to communicate the content of that assessment and the steps in place to minimise risk to your staff and others
• failing to train and test staff in evacuation procedures
• failing to check and keep fire exits clear, operational and well signed

The test is whether you have adequately managed the potential for harm if there was to be a fire. The fact you haven't had a fire or injured anyone is not going to save you from the risk of a very significant fine. There may be no smoke without a fire, but breaches with or without a fire are being aggressively prosecuted. Make sure that you are aware of the regulations and the obligations they impose and that you comply with them.

This article is reproduced with kind permission by Wragge & Co. The firm’s regulatory litigation team has experience advising on health and environmental safety matters, including compliance with the RRO and defending prosecutions for breaches of the Order. Contact Susan Dearden, partner, +44 (0)121 685 2957. This analysis may contain information of general interest about current legal issues, but does not give legal advice.