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“The Fire Safety Order might need a judicial review”: Warren Spencer on the post-Grenfell landscape

Adam Bannister

Editor, IFSEC Global

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Adam Bannister is editor of IFSEC Global. A former managing editor at Dynamis Online Media Group, he has been at the helm of the UK's leading fire and security publication since 2014.
May 3, 2019

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Warren Spencer, managing director of Blackhurst Budd Solicitors, has defended or prosecuted over 190 cases under the Fire Safety Order – the legislation governing fire safety responsibilities for HMOs and commercial premises – since October 2006.

Speaking to IFSEC Global, he reflected on the wide-ranging impact of Grenfell on attitudes to fire safety: including how courts deal with cases, public awareness and the approach of the fire service.

He also ponders whether the Fire Safety Order is still fit for purpose 14 years after coming into force, how he brings a dry, technical subject to life in delivering training and presentations, plus expresses misgivings about the fragmented nature of industry associations.

His blog – Fire Safety Law – has proved a hit with fire safety professionals, with articles including Is it time to review and amend the Fire Safety Order? and Fire service treatment of suspects must improve.

Spencer also provides fire safety training to fire services, fire risk assessors and businesses – which he also discusses below.

In 2018 he topped the fire safety category in the IFSEC Global security & fire influencers. One of his nominations said Spencer “gives back generously to both fire and rescue services and fire risk assessors/consultants with free seminars, presentations and frequent articles [he] has become the first choice lawyer nationally for advice and representation relating to fire safety law.”

IFSEC Global: Hi, Warren. What’s happening in your professional life right now?

Warren Spencer: It’s getting very busy, from a fire safety point of view. That’s mainly what I do. I sit as a judge probably three times a month, and I’m obviously managing director of the practice so I have to run the practice.

There was a bit of a lull after Grenfell. Everyone thought: “I bet you’re busy” – when in fact fire safety officers were pretty much making high rise buildings safe for about 18 months after Grenfell, which meant they were not inspecting buildings, carrying out less enforcement work. So in fact the impact of Grenfell on me was that it actually quietened down.

At the same time, the budgets for training seemed to be either reinstated or increased, so I do quite a lot of training. Training had entered a lull in 2015-16.

So as of about August last year, it seems to be getting back to where it was pre-Grenfell. I’m pretty busy.

IG: Any other changes you have noticed post-Grenfell?

WS: Yes. Mainly in the courts. There used to be a limit on each charge of a £5,000 fine, but now it’s unlimited.

And they’ve broadened some guidelines for health and safety cases. Those guidelines don’t apply to fire safety cases, but the Court of Appeal kind of shoehorned fire safety cases into the structure of the way guidelines to sentence work – so that’s increasing the size of fines.

Those guidelines deal with culpability, risk of harm, size of company etc… so looking at big corporate, health and safety matters. And although they don’t directly apply to fire safety matters, the Court of Appeal says you can take a similar approach. So that’s making fines higher as well.

“The courts always spoke about fire safety as a serious matter – but they’re now dishing out sentences to match”

But generally the attitude of the courts towards fire safety cases. They were always spoken about as serious matters, but now they’re actually dishing out sentences to match.

I had a case last year where the defendant was sentenced to 20 months’ imprisonment, which as far as I’m aware is the biggest length of imprisonment under the Fire Safety Order for one case. Because the maximum is two years, and you always get a third discount for a guilty plea. So 20 months was quite significant.

So whereas I used to have to explain how fire could spread in buildings and what needed to be done to prevent it, now judges and magistrates accept entirely that fire can spread very quickly with catastrophic consequences.

IG: The greater media spotlight perhaps focuses their minds…

WS: And the courts make reference to that. It really has made a difference.

It’s also, I think, made a difference to fire services’ attitude to enforcement. They’re thinking: “if there was a fire in these premises, would we be able to justify our actions?”

IG: It’s not just the media; the general public are surely more mindful now. Say, if they’re stopping in a hotel, they might be on the lookout for alarms and extinguishers…

WS: Yeah. I think public awareness of the potential risk of fire is greater. I wouldn’t know too much about whether fire services are getting more complaints or phone calls, but I’m dealing with one this afternoon where a member of the public phoned with a concern.

And that’s only going to increase. There’s been so much in the media about fire safety that people are more educated about the risks.

IG: Please tell us more about your training…

WS: There are two aspects. The first is for fire safety officers, who may not have any fire safety training at first. Firefighters are not necessarily familiar with the workings of the Fire Safety Order. And of course they will have very little legal knowledge.

So I do some basic legal training on how the courts deal with these cases and what’s needed to put a file together by way of investigation and evidence gathering – because of course the Fire Safety Order gives fire officers certain powers.

“We train firefighters on their powers under the Fire Safety Order and how to put together a legal case”

It’s about being aware of those powers and utilising them to put together a legal case, either by way of enforcement of appeal or prosecution. I’m now accredited by Skills for Justice and the level 4 diploma.

But I’ve also done a lot of training recently with property-owning businesses and portfolio-owning companies about the duties of the responsible person and of people who control premises under Article 5.

As well the interrelationship between people with control of premises under Article 22, where parties have to cooperate and coordinate with each other to make sure the premises as a whole are safe, even if certain people have control over one part of the premises, they have to liaise with people who control other parts of premises.

So dealing with companies and explaining Article 22 liability, and how they can manage that, is something I’m doing in the private enterprise world.

IG: How hard is it to convey the relevant information in a way that’s manageable, engaging and not overwhelming? Because fire safety is quite a dry, complex subject…

WS: I think it is. There are two areas that are dry: regulatory law and fire safety.

What I try to do is use my cases as case studies. I’ve done over 200 cases under the Fire Safety Order. So I’ve cherry picked a dozen or so where certain points have been made and explanation or clarification of the Order has been required at some point during the case.

I use those examples, give the facts of those cases, to get some meat on the bones.

IG: It’s arguably more likely to lodge in people’s minds that way…

WS: Yes, rather than just throwing law at them.

Because I’ve been involved with a wide variety of premises – nursing homes, hotels, HMOs in particular, but also bars, brothels… they bring it to life.

IG: Much of the post-Grenfell debate has been about building regulations, hence the review of Approved Document B. There’s been very little talk about the Fire Safety Order. Is it still fit for purpose?

WS: I don’t know is the answer to that. Certainly when I saw the draft Hackitt report, I thought there would be widespread change. Then when the final report came out, I thought it had been watered down. Most recommendations only applied to buildings 10 storeys or above, defined as complex buildings.

The competency of fire risk assessors doesn’t look like it will be dealt with in relation to high rise buildings.

 “There haven’t been any Court of Appeal cases on interpretation of the Fire Safety Order in 14 years”

I did submit my views on where the Fire Safety Order needed reform. It is now, after all, 14 years old, and there haven’t been any Court of Appeal cases on interpretation.

There have been Court of Appeal cases on sentence, people appealing sentence and it being too harsh etc… but not on interpretation. That’s mainly because only about 5% of cases go to trial. So most people, if they’re pleading guilty, they’re not going to appeal.

So if only 5% go to trial, the odds are that some of those might go to the Court of Appeal on a point of law – but that would be very costly. And because it’s businesses that are being prosecuted, rather than say legal aid clients or defendants, there’s not the appetite for challenging the order or its interpretation in the Court of Appeal.

What that means is nobody has really looked at the Fire Safety Order from a legal point of view for 12 years. It does need reform in certain areas. The whole responsible person and Article 5 definitions need to be brought together, because that would assist with what’s been described as the ‘golden thread of responsibility’ etc…

But if they wanted to bring in, as has been talked about, overarching duty holders, then the Fire Safety Order would have to be almost completely repealed.

But there are areas which are poorly drafted, and there are areas that need looking at. For example, obstructing a fire officer in their duties. It’s a summary only matter, which means it can only be dealt with in the Magistrates Court with a very small fine – which is bizarre.

So if you get arrested for drink-driving and refuse a breath test, your minimum ban is 18 months. Which is longer than the minimum ban if you did give a breath test. So they’ve tried to persuade people to comply with the law.

The Fire Safety Order works the other way round: it actually benefits people who obstruct fire officers. That needs looking at.

But certainly, Articles 3 and 5 are the areas that cause the most confusion. The interrelationship of Article 22 I think needs looking at. Those are the areas I think are unclear and need at least some kind of judicial review.

IG: Any other concerns about the industry, Warren?

WS: I am concerned that the industry is very disparate: there are lots of different organisations. People have their own agendas and there isn’t any will to unify.

That dilutes the powerbase. If you have a lot of small organisations, they’ll have less clout to make recommendations or suggests reforms.

Also, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is now auditing fire services in a similar way to the police, and the way they’re approaching enforcement. So I think the appetite for more stringent enforcement is going to grow. I think there have already been 14 audits, and most have concluded that enforcement is inadequate or that improvement is required.

So that might well change the attitude towards enforcement of fire services who haven’t perhaps been as eager to take prosecution cases in the past.

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