In this guide, BCL partner Tom McNeill explains the details of Fire Safety Enforcement and Prohibition Notices and the process for responding to this type of criminal regulatory investigation.
The Regulatory Reform (Fire Safety) Order 2005 (‘FSO’) imposes onerous fire safety duties on persons in control of non-domestic premises breach of which can be a criminal offence. Fire Authorities have a range of enforcement options to ensure compliance with the FSO including enforcement, prohibition and alterations notices. What should you do when you receive a statutory notice, and how best mitigate the risk of prosecution?
Why have you been served a notice?
When a Fire Authority considers that the ‘responsible person’ (or person with responsible person duties) has failed to comply with any provision of the FSO, they have a range of options to ensure compliance. In line with enforcement guidance, their approach must be risk-based and proportionate.
In less serious cases, the Fire Authority may offer informal advice, whether in person or in writing. If the inspector decides that formal advice is required, they may serve a non-statutory notification of deficiencies, explaining the deficiencies and what should be done to address them. The notification does not have legal force and is not binding but if not complied with is likely to lead to further enforcement action.
A Fire Authority will generally not serve a statutory notice unless of the view that:
- there is a clear breach of the FSO
- the degree of risk or harm from the situation is significant
- a remedy needs to be identified and secured within a set period of time, or before premises are put to a particular use.
What are statutory notices?
Statutory notices enable Fire Authority inspectors to compel responsible persons to remedy breaches; and when the risk is sufficiently serious to restrict or prohibit use of premises. Breach of a statutory notice is a criminal offence.
An enforcement notice will specify the provisions that the Fire Authority believes have not been complied with and require failures to be remedied within a specified period. Where the risk is so serious that use of the premises ought to be prohibited or restricted, an inspector may serve a prohibition notice stating such an opinion, specifying the relevant matters, and prohibiting or restricting use of the premises until the specified matters have been remedied. When a prohibition notice is served it is common for an enforcement notice to be served at the same time.
Fire Authorities also have the power to serve alterations notices, most usefully when an impending change to the premises would create a serious risk. The notice may require that before any changes are made, a copy of the fire risk assessment together with details of the proposed changes are submitted to the Fire Authority.
Complying with notices
In most cases, it will be necessary to appoint competent persons to (as necessary) identify and implement appropriate remedial measures. Responding promptly will minimise disruption and related costs and help mitigate the risk of prosecution.
What however if the notice is issued on the basis of incorrect information? Or requires remedies not within the control of the person on whom the notice is served? Or requires remedies that are not reasonably practicable or otherwise unreasonable in the circumstances?
Can a notice be withdrawn?
In some circumstances, a Fire Authority may agree to modify or withdraw a notice – for example, if persuaded that a notice is issued on the basis of incorrect information, or imposes legally unenforceable conditions. Unless the notice is served on the wrong person, any representations would also need to persuade the Fire Authority that fire safety risks were being appropriately addressed. Fire Authorities will generally not accept voluntary undertakings in place of a statutory notice in any case where the level of risk to life is sufficient to justify service of a notice.
Can a notice be appealed?
Enforcement, alterations and prohibition notices can be appealed to the magistrates’ court within 21 days from the day on which the notice is served. An appeal against an alterations notice or enforcement notice has the effect of suspending the operation of the notice until the appeal is disposed of or withdrawn (so that it is not an offence not to comply with the terms of the notice). An appeal against a prohibition notice does not have the effect of suspending its operation unless so directed by the court.
Determinations by the Secretary of State
While difficult to pursue once an enforcement notice has been served (‘Article 36 determinations’ should ordinarily be pursued before service of an enforcement notice) note that disagreement between the responsible person and Fire Authority as to the remedial measures required can be resolved if both parties agree to refer the matter to the Secretary of State for determination.
Risk of prosecution
Even should breaches identified in a notice be remedied, there may remain a risk of prosecution. As noted above, statutory notices are served in more serious cases and may be an early step in an ongoing criminal investigation. Inevitably, any response to a statutory notice would be important evidence in such an investigation, while failure to comply would likely lead to a criminal investigation if not already commenced.
Note that prosecution risk may extend to senior officers as well as the organisation. If an offence by a corporate is committed with the consent or connivance, or attributable to the neglect, of a director or manager, he/she as well as the corporate will be guilty of an offence.
Individuals and organisations will usually be notified in writing if they are under investigation. An investigation will explore the nature and extent of suspected breaches, the circumstances in which they arose, and responsibility for the same.
Inspectors have extensive investigatory powers, including to enter premises, make such inquiries as may be necessary, and to require the production of records. An inspector’s powers do not extend to compelling persons to be interviewed. Inspectors will request witnesses to provide statements voluntarily, or suspects to attend an interview under caution voluntarily.
Information provided in response to ‘compulsory’ requests by the Fire Authority, and the response to any request for an interview under caution, will inevitably be critical to any prosecution decision. In addition, representations may be made on a suspect’s behalf which the Fire Authority will be duty-bound to consider.
Decisions to prosecute
Decisions to prosecute will be on the basis of the two-stage test in the Code for Crown Prosecutors: firstly, there must be sufficient evidence to provide a realistic prospect of conviction; and, secondly, prosecution must be in the public interest. Any enforcement decision must be proportionate and will be made in the light of various factors including:
- The nature and seriousness of any alleged breaches
- The degree and likelihood of harm risked, and any harm actually caused
- Record of compliance
- Action taken to prevent recurrence
- The circumstances and attitude towards fire safety
- Any statutory defence available (e.g. having taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence)
- The likely effectiveness of the enforcement options in securing ongoing compliance with fire safety requirements.
Things to remember
If you have received a statutory notice, in most cases it will be necessary to appoint competent persons to (as necessary) identify and implement appropriate remedial measures. There will however be occasions where a notice may have been wrongly issued and where it may be advisable to challenge, whether the whole notice or part. Further, for serious breaches, remedial action alone may be insufficient to mitigate the prosecution risk. The FSO is highly technical, which gives rise to difficult legal and evidential issues, including in relation to the nature and scope of duties, the availability of legal defences, and the degree of risk necessary for a breach to be criminal. In such circumstances, expert legal and fire safety advice will be essential.