Offences under the Fire Safety Order could see fines of up to £100 million, a fire safety lawyer has warned.

Speaking at the info4fire.com learning zone at International Firex last week Nick McMahon, of Reynolds Porter Chamberlain solicitors, compared the levels of fines under fire safety legislation with those handed down under health and safety law.

Mr McMahon gave his warning on the potential level of fire safety fines after a Court of Appeal case last year. In that case, which involved a prosecution under the Health and Safety at Work Act 1974, the judge, referring to the sentencing guidelines for corporate manslaughter and health and safety offences causing death, commented that "one can well imagine fines of £100 million being imposed..."

While this would not automatically mean fines of that level for fire safety offences, it was an indication of the courts' growing willingness to consider substantially higher fines in principle – as demonstrated in the Shell and New Look cases. While there were no deaths or serious injuries in those cases, there was a "significant potential for disaster". So it was not inconceivable that offences under the Fire Safety Order that did cause death would attract much higher levels of penalty, he said.

Overall, there was an upward trend, even if there were no fatalities, he said.

His prediction mirrors that of lawyer Hilary Ross, who spoke at Firex North last year and said that fines were likely to be more closely linked with the offending company’s turnover.

Prioritising risk
However, another speaker at the session entitled See you in court? Fire safety enforcement and prosecution issues, said enforcement was not relished by fire authorities. Jonathan Herrick, fire safety policy manager at West Midlands Fire and Rescue Service, said there was a need for open dialogue between companies and fire authorities.

For example, if his authority were considering what action to take at the premises of a company with branches across the country, and he was told that the company had sites in other locations which had more serious risks, the authority could theoretically allow that manager more time to prioritise the more serious works.

“This way, I can grant them more time and I know they are doing their best to prioritise the risk”, he said. “See you in court? I hope not.”

He also spoke about the Fire Safety Order getting away from prescription and a 'black and white' method of law enforcement, to one that had more shades of grey. "Grey is good, it supports risk assessment," he told visitors. While clarity of requirements was desirable, he said, court-driven solutions are to be avoided, because "they direct enforcing authorities and create prescription".

Enforcement and guidance
Fire safety consultant and expert witness, Colin Todd, was also on the panel. He reminded both fire authorities and responsible persons that the guides under the Fire Safety Order were just that – guidance – and that the term "enforcing the guides" does not compute.

Arguing for a more constructive relationship between responsible persons and enforcers, he called for better adherence on the part of fire authorities to the principles of clear standards, openness, helpfulness, proportionality and consistency, as laid out in the Enforcement Concordat. He also posed the question whether "the exponential increase in enforcement and prosecutions reflect an increase in persons at risk, or an increase in over-zealous enforcement?"