Fire Safety Regulations

The duties under the The Regulatory Reform (Fire Safety) Order are increasingly being enforced by way of criminal prosecution, it is important to be aware that the Order equally applies to vacant buildings.

Many of the offences are strict liability and solely consider whether or not there has been sufficient compliance with the requirements as set out in the Articles.

Responsible Person

An offence can only be committed where someone is “in control” in respect of those offences. The Prosecution are required to prove this, they must meet the definition as set out in Article 3. In order to meet the obligations under EC Directives, wherever there is an employer they will continue to be responsible for the safety of their employees. In order to achieve the necessary broader coverage of the legislation beyond workplaces, the definition has been extended. Therefore, where there is no employer in any premises, where the person in control of the premises does not have control in connection with the carrying on by that person of a trade, business or other undertaking, the owner of the premises is the responsible person.

The Relevant Duties

Therefore, the duties on a responsible person vary depending on whether the premises are a workplace or not. The responsible person in a workplace must ensure that duties are complied with in respect of the premises. If it is not a workplace, then the standard is so far as the requirements relate to matters within his control.

The Powers of Inspectors

Article 27 provides an inspector with a number of powers pursuant to the Regulatory Reform (Fire Safety) Order 2005. The two key provisions are as follows:

(b)    to make such inquiry as may be necessary for any of the following purposes

to ascertain, as regards any premises, whether the provisions of this Order or any regulation made under it apply or have been complied with; and

(d)   to require any person having responsibilities in relation to any premises (whether or not the responsible person) to give him such facilities and assistance with respect to any matters or things to which the responsibilities of that person extend as are necessary for the purpose of enabling the inspector to exercise any of the powers conferred on him by this article;

Article 32 creates a number of offences in this respect. As such, a breach of the above amounts to a criminal offence.

The Available Defence

Even if the prosecution can prove an offence has been prima facie committed, subject to Article 32(11), in any proceedings for an offence under this Order, except for a failure to comply with articles 8(1)(a) or 12, it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

In terms of the burden and standard of proof, we have confirmed that it is for the prosecution to prove. In respect of this defence, it is for the accused to prove, albeit on the balance of probabilities, that it was not practicable or reasonably practicable to do more than was in fact done to satisfy the duty or requirement.

Where the proceedings relate to a failure to comply with a duty or requirement "so far as is practicable" or "so far as is reasonably practicable" (for example, the duty under article 8(1)(a)), the onus is on the person accused of the offence to prove that it was not practicable/reasonably practicable to do more to satisfy the relevant duty or requirement (article 34). This is a high standard.