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New Look Retailers Ltd v London Fire & Emergency Planning Authority, Court of Appeal, 16 June 2010

2 July 2010
The issues

Health & Safety At Work – sentencing – Regulatory Reform (Fire Safety) Order 2005.

The facts

The Appellant company was a private company in the business of retailing clothes for women and children with approximately 612 retail premises, employing over 20,000 staff, and with a turnover in the year 2009 of £1billion per annum. It’s pre-tax profits for that year were £200 million. One of its premises was situated in Oxford Street in London. On the 26th April 2009 a fire broke out, probably in a store room on the second floor. It required 30 pump fire appliances and engaged the fire services over night. Some 400 people were evacuated. About 150 of whom went through New Look’s store. Oxford Street was close for 2 days and traffic was severely limited.

The Regulatory Reform (Fire Safety) Order 2005 came into force on the 1st October 2006. The scheme of the Order was in part a mirror image of the provisions of the Health and Safety At Work Act 1974. The authority laid out 35 alleged breaches of duty in the indictment. The indictment was replaced at case management stage with a two count indictment charging the Appellant with a failure to carry out a suitable and sufficient assessment of the risks to which relevant persons were exposed, for the purpose of identifying the fire precautions needed to comply with the requirements and prohibitions imposed by the Order, contrary to Article 32(1)(a) and Article 9; and a failure contrary to Article 32(1)(a) and Article 21(1) to ensure that its employees were provided with adequate safety training. The Appellant pleaded guilty. The Judge imposed a fine of £250,000.00 in respect of the first count, and £150,000.00 in respect of the second count, plus costs. The company Appealed.

The decision

Article 32, which created the offence, specifically required proof of breaches of a magnitude which would put relevant persons at risk of death or serious injury in the case of fire, however caused. That was a relevant difference between the terms of the Order and the provisions of Section 33 of the 1974 Health & Safety At Work Act. The magnitude of the risk taken by the Defendant would, as with health and safety breaches, vary from case to case. As in all cases of risk or of death or serious injury, assessment of culpability and harm would depend on the particular factual context. The sentencing Judge was entitled to recognise that the nature of the risk against which employees and others were to be protected was the risk from death or serious injury in a fire. Breach in the context of fire, which could be indiscriminate in its effect, would usually be a very serious matter. The Court did not have to wait until death or serious injury had occurred to express its displeasure at wholesale breaches of the Defendant’s responsibilities under the Order. It did not follow that fines would be imposed at the same level for breaches which did and breaches which did not have a causative influence in the fire or in death or serious injury. The Judge was intending to impose a fine which reflected the seriousness of the offence in its creation of the risk to its visitors. The magnitude of that risk was demonstrated not by a death or serious injury but by a fire in which fire and serious injury was fortuitously avoided. The Judge made no error in principle or approach as to the issues of seriousness and culpability. It had not been submitted that the fines were disproportionate to the Appellant’s means. The Court shared the Judge’s view that the Appellant’s performance of its fire safety duties in a large department store in the centre of London was lamentable. The fines were severe but they were not manifestly excessive.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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