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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 a fire risk assessor 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. The fire risk assessor, 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:
  1. Fire risk assessments were not suitable and sufficient
  2. inadequate fire doors at the premises compromising exit routes
  3. an emergency exit was locked
  4. emergency lighting at the premises was inadequate
  5. inadequate fire detection at the premises
  6. fire extinguishers were not sufficiently maintained
  7. 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 the fire risk assessor 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 the fire risk assessor £5,862.38).

The fire risk assessor

The fire risk assessor had produced the risk assessments in return for payment. There was a clear contract between the premises operator Liu and the fire risk assessor 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 defendants financial affairs. The court in this case was assisted by the prosecution obtaining Financial Circumstance Orders prior to sentence.

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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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