Laying Down the Law. Fire Safety North Warren Spencer 10 October 2017
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1 Laying Down the Law Fire Safety North 2017 Warren Spencer 10 October 2017
2 Warren Spencer Qualified 1993 Solicitor Crime prosecution & defence; PI; Clinical negligence Blackhurst Budd Limited Managing Director First Fire Safety case 2005 First FSO case February 2007 Prosecuted/Defended over 160 FSO cases Prosecuted for 8 Fire & Rescue Services Higher Courts Advocate Sit as Tribunal Judge Chair Police Disciplinary Proceedings Former Assistant Coroner, Blackpool Lectures; Articles; Briefings
3 Prosecutions Under the Fire Safety Order
4 10 Years of Prosecutions The Fire Safety Order The Stats: only available from March 2009 March convictions from official stats (My cases Oct 2006 March ) (My cases March ) 2015 to cases? (probably not) Probably around 500 cases in total?
5 10 Years of Prosecutions The Fire Safety Order Types of Premises 124 prosecutions HMO s; PB flats; hostels; converted flats and other sleeping accommodation One Quarter of prosecutions Sleeping Accommodation
6 10 Years of Prosecutions The Fire Safety Order The Housing Act v The Fire Safety Order
7 10 Years of Prosecutions The Fire Safety Order Care homes 11 HMO s 73 Purpose-built flats (x4 stories) 7 Hostels 5 Hotels 39 Houses converted to flats 21 other sleeping accommodation 18 licensed premises 65 Schools 5 Shops 80 Factories and warehouses 21 Offices 5 Other premises 22
8 10 Years of Prosecutions The Fire Safety Order The top 5 FSO Articles which have led to convictions are:- Article 14 - emergency routes and exits 276 Article 9 - risk assessment 190 Article 8 - duty to take general fire precautions 186 Article 13 - firefighting and fire detection 153 Article 17 - maintenance of premises 123
9 10 Years of Prosecutions The Fire Safety Order 8 (Article 27) prosecutions
10 10 Years of Prosecutions The Fire Safety Order The Penalties Fines up to 400,000
11 10 Years of Prosecutions The Fire Safety Order The Penalties Prison sentences up to 19 months imprisonment
12 10 Years of Prosecutions The Fire Safety Order My Cases 22 Custodial Sentences 18 Suspended
13 Responsible Persons Owner Premises Managers Fire Alarm Engineer Employer Staff Fire Safety Management Company Fire Risk Assessor
14 Who has been prosecuted? Landlords Managing agents Local Authority DPS Duty Staff Managers Fire Alarm Engineers Fire Risk Assessors Pub Chains Care Home Owners Brothel Managers
15 Fire Service Involvement Following a fire/incident Routine Audit Cause for concern eg false alarms Complaint Spot check Policy decision
16 Responsible Persons The Corporate Personality Companies (Limited/Unlimited) Partnerships (incl LLPs) Joint ventures - who has control? Schools Trusts/Charities
17 Significant Cases Shannons Bar - interior/exterior repairs clause 56 Chatsworth - LCC; Housing management Co. Oldfield Bank - Staff member; Fire alarm engineer Rams Head Inn - Owner; occupier; FRA; Pub Chain The Abbey College - School owner Minster Care - Fire Risk assessor retainer Isaq - POCA Metcalf - 18 months
18 Defences 9 trials in 160 cases All found guilty after trial.
19 Defences (Article 8 Strict liability) 1. It s not me Gov. A3 and A5 2. Due Diligence (Article 33) 3. No risk of death or serious injury
20 Fire Risk Assessors John O Rourke 11/07/11 Craig Stonelake 25/3/15 Graham Foote 23/6/16 Brian Fakir 1/3/17
21 Fire Risk Assessors John O Rourke 11/07/11 Craig Stonelake 25/3/15 Graham Foote 23/6/16 Brian Fakir 1/3/17 All successfully prosecuted
22 How does the Order affect.. Fire risk assessors Fire alarm companies Fire safety consultants - a responsible person? - a person responsible? - A 5(3) person? - A 5(4) person?
23 Article 5 (3) Any duty.shall also be imposed on every person, other than the responsible person.who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
24 Article 5 (4) Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to- (a) the maintenance or repair of any premises, including anything in or on the premises; or (b) the safety of any premises That person is to be treated.as being a person who has control of the premises to the extent that his obligation so extends.
25 Responsible Persons Enforcement notices 30. (1) If the enforcing authority is of the opinion that the responsible person or any other person mentioned in article 5(3) has failed Prohibition notices 31. (1) If the enforcing authority is of the opinion that use of premises involves or will involve a risk to relevant persons so serious that use of the premises ought to be prohibited or restricted, the authority may serve on the responsible person or any other person mentioned in article 5(3) a notice. Offences 32. (1) It is an offence for any responsible person or any other person mentioned in article 5(3) to.
26 Fire Alarm Engineers Article 5 (4) Where a person has, by virtue of any contract.an obligation of any extent in relation to- (a) the maintenance or repair of any premises, including anything in or on the premises; or That person is to be treated.as being a person who has control of the premises to the extent that his obligation so extends.
27 Fire Risk Assessors Article 5 (4) Where a person has, by virtue of any contract. an obligation of any extent in relation to- (b) the safety of any premises That person is to be treated.as being a person who has control of the premises to the extent that his obligation so extends.
28 Fire Risk Assessors How would the court approach it? Was the Assessor appropriately qualified? Was the Assessor Competent?
29 Fire Risk Assessors Would the Court work backwards? Insufficient and unsuitable Report = Incompetent Risk Assessor A dangerous approach The Courts like operational Firemen!
30 Fire Risk Assessors But how much training, experience, and knowledge is sufficient? CFO recognise differing levels of competence required for different types of premises no recognised universal criteria Accreditation is key
31 Fire Risk Assessors you cannot disclaim criminal liability but you can limit your control
32 You can protect yourselves Appropriate disclaimers Agreed terms of instruction with the RP Accurately assess your control of premises Accurately reflect your input Limit your comments on management Are you putting relevant persons at risk of serious injury or death?
33 Fire Risk Assessors (in house) What if they don t do as I advise? Can I be liable? What is the extent of my control? Record of advice and requests When they do rely on your incorrect advice
34 Fire Risk Assessors (in house) What if they don t do as I advise? Can I be liable? What is the extent of my control? Record of advice and requests When they do rely on your incorrect advice
35 Warren Spencer Connect: LinkedIn Blog:
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