prosecution of fire risk assessor
First successful prosecution of a fire risk assessor using
article 5(3)
20 July 2011
On 8 July 2011, Nottingham Crown Court dealt with what is believed
to be the first successful prosecution of a fire risk assessor. A
prison sentence was imposed upon the assessor and also the operator
of the premises concerned.
The law
Article 5(3) of the Regulatory Reform Fire Safety Order places a
duty to comply with the Order on persons other than responsible
persons under Article 3 to the extent that they have control of
premises.
Article 5(4) makes clear that when a person has by virtue of any
contract or tenancy an obligation for the maintenance or repair of
premises, or the safety of the premises they will be treated as a
person who has control of the premises to the extent that their
obligation so extends.
The case
Browne Jacobson advised Nottinghamshire and City of Nottingham
Fire Authority throughout the investigation and prosecution of Mr
Liu, the operator of two hotels, and Mr O’Rourke who had conducted
risk assessments in respect of both premises.
Mr David Liu was the licensee and a responsible person for the
purposes of the Order under Article 3 for both premises. Mr John
O’Rourke, trading as Mansfield Fire Protection Services, carried
out fire risk assessments at both premises and was responsible
under Article 5(3) of the Order for ensuring that the risk
assessments were suitable and sufficient.
Deficiencies at the premises included:
- Fire risk assessments were not suitable and sufficient
- inadequate fire doors at the premises compromising exit
routes
- an emergency exit was locked
- emergency lighting at the premises was inadequate
- inadequate fire detection at the premises
- fire extinguishers were not sufficiently maintained
- the fire alarm and emergency lighting were not sufficiently
maintained.
Having originally proceeded on not-guilty pleas in the Magistrates
Court and a defence statement having been filed by Mr Liu, both Mr
Liu and Mr O’Rourke entered guilty pleas in the Crown Court. Prior
to sentence the fire authority applied for and successfully
obtained a Financial Circumstances Order forcing the defendants to
disclose their financial affairs. Both were sent to prison for
eight months and ordered to pay the full prosecution costs claimed
(Mr Liu - £15,000 and Mr O’Rourke £5,862.38).
The fire risk assessor
Mr John O’Rourke had produced the risk assessments in return for
payment. There was a clear contract between the premises operator
Liu and O’Rourke in accordance with Article 5(4) thereby engaging
the provisions of Article 5(3).
The risk assessments failed to identify deficiencies with means
of escape, fire separation and fire warning systems at both
premises which were of such a low standard that persons were at
risk of death or serious injury in the case of fire. Evidence was
also provided from an enforcement officer at Nottinghamshire and
City of Nottingham Fire Authority highlighting the significant
deviations from ‘HM Government Guidance for Fire Risk Assessment’
in places providing sleeping accommodation.
The importance of ensuring the competence of persons offering
services to undertake fire safety assessments was clearly accepted
by the judge who stated:
“It seems to me an example has to be set about risk
assessors, who are not with qualifications…”
In summary
All persons who take on any duties under the Order are
accountable for their actions but primary responsibly rests with
employers (occupiers and owners), however, Article 5(3) was clearly
designed and drafted to ensure that others may be caught.
The sentence of eight months imprisonment with an order to pay
the prosecution costs in full is significant. Not only does it send
out a message regarding the seriousness of these offences, but also
demonstrates that even when custody is imposed, the public purse
will be protected if courts have sufficient information regarding
defendant’s financial affairs. The court in this case was assisted
by the prosecution obtaining Financial Circumstance Orders prior to
sentence.
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of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
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