Over the yearsI have had a number of enquiries relating to enforcement issues with large corporate bodies, and I particular with identifying responsible persons within large organisations and in premises where more than one person has control.
These issues are usually highlighted where fire audits have prompted indications to those responsible enforcement or prohibition notices are being considered. FS Officers have then been bombarded with phone calls, e-mails and correspondence from large city law firms threatening legal action if such notices are issued.
What is concerning is that these ‘bully boy’ tactics often work.
My own view is that the lawyer’s role is to advise – not to negotiate. In the non-regulatory world criminal lawyers would never dream of contacting the police to advise them how to conduct their investigation, and certainly never threaten legal proceedings in the event of certain enforcement decisions being made. Such interference would be considered as tantamount to perverting the course of justice.
So who should be investigated and who should enforcement action be taken against?
When carrying out any investigation or fire safety audit, it is essential that those with control of the premises are identified. In large organisations the task of identifying the responsible person (RP) or persons can be very difficult. However, it is not for the enforcing authority to attribute which responsibilities attach to the various persons with control. The legislation has been drafted in such a way as to relieve the investigating officers of that burden.
Consider the guidance documents. At Part 2 – ‘Managing Fire Safety’, the corporate responsibility is made clear. The company policy should set out those who will hold responsibility for fire safety. When investigating large organisations, the written company policy should be sought immediately. A failure by the corporate body to have considered the above points could lead to further charges under Article 11. Under Articles 5 (3) and 5(4), any person with any control over any part of the premises can be a person responsible under the Order. This would include store managers; licensees; or anybody who made the decision to open the premises on any particular day.
Enforcement or Prohibition Notices should always be issued against the RP under Article 3, but they should also be issued against any persons with any control over the premises.
A number of issues have been raised recently, for example, with regard to the relationship between breweries and licensees. In these situations, there is usually a lease agreement which details the repairs responsibilities of each party. However, very few leases deal with fire safety responsibilities. The investigating officer must satisfy himself that the employer or owner of premises has properly divested themselves of their responsibilities under the Fire Safety Order. How can they have done this if they have not included relevant clauses in the lease?
Article 22 is quite clear: where two or more responsible persons share duties in respect of premises, each must co-operate with the other person concerned so far as is necessary to enable them to comply with the requirements and prohibitions imposed on them by the Order.
If the relevant notices are served on all the responsible persons and those notices contain reference to Article 22, the investigating officer has done his job. He need not get involved with the arguments as to who is responsible for the fire alarm. The Magistrates’ Court will have little sympathy to such arguments either. They will merely quote Article 22, and tell those responsible to sort it out.
The Order and the guidance clearly foresaw the practical difficulties of enforcement against large organisations. If the guidance documents and Article 22 are properly utilised the ‘bully boy’ tactics and clever legal arguments may well start to backfire.
