I read with interest here last week that the loophole that enabled the Rosepark Care Home owners to escape prosecution was to be closed following the introduction of a bill in the House of Lords.
I am in no way an expert on Scottish law, but it appears to me that the Fire (Scotland) Act 2005 is significantly different from the Regulatory Reform (Fire Safety) Order 2005 (RRO) in a number of respects.
It would seem that the case against the owners of Rosepark Care Home was dismissed largely because the employer’s partnership that existed between those who were charged had been dissolved following the fire, where 14 people died.
Confusion over owners
The same problems arise under the RRO when limited companies file for voluntary administration following an inspection or audit by investigating fire authorities. This has happened in a number of cases in which I have been involved. One particular case provides an excellent case study.
Fire officers inspected a hotel in December 2008. A number of serious breaches under the RRO were found. The signage inside and outside the hotel referred to a company that we’ll call ABC Ltd. The company had one shareholder and one director, Dr. J.
Dr. J was interviewed under caution in March 2009, when he stated that ABC Ltd. had nothing to do with the hotel in question. He stated that the employer at the hotel at the time was DEF Ltd. However, DEF Ltd. had been wound up in January 2009. The new employer at the hotel (as of March 2009) was XYZ Ltd.
Dr. J confirmed that he was the sole shareholder and director of all three companies. He owned the premises but had leased it to DEF Ltd. (the old employer). He was the Designated Premises Supervisor under the Licensing Act. He had accepted in an interview that he had signed the cheques for any work carried out within the premises.
Who should the summons be issued against?
XYZ Ltd. (the latest employer) had to be ruled out as a potential defendant, because it was not in existence at the time of the offences. Despite giving the appearance of being the employer, ABC Ltd. had to be ruled out, because it had no formal relationship with the premises. That left DEF Ltd., which was in administration but was clearly the employer at the time of the offences, and Dr. J himself.
The decision was made to prosecute DEF Ltd. and Dr. J. Those acting for the defendants offered guilty pleas from DEF Ltd., provided the case against Dr. J was withdrawn. The offer was refused.
It is here that the RRO can be distinguished from Scottish law. We argued that Dr. J was a person with control under Articles 5(3) and 5(4). He was the owner of the premises. He was responsible for the day-to-day running of the premises under the Licensing Act. He was able to sanction an extraordinary resolution (within DEF Ltd.) to allow fire safety work to be carried out, as he was sole director and shareholder of the company. And as the person who had authorised works to be carried out, he had shown conduct consistent with being a person with control over the premises.
The district judge accepted these arguments. Dr. J eventually pleaded guilty (as did DEF Ltd.), and it was Dr. J who was fined and ordered to pay costs.
The winding up of the corporate employer did not work in this case. However, in a case where the corporate employer is owned by a number of shareholders with a number of directors, the winding up of the company following an audit would create more of a problem.
The employer has to be a responsible person under Article 3, and if there is no individual in a role similar to that of Dr. J, then a prosecution may prove equally as difficult as it did in the Rosepark case.
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thank you, interesting, I think like everywhere in the legal system loopholes do exist… and until law change… people could use them to get away with things… so to say… but basic safety and safety training is a must in any case… and in my book owner must provide this training, verifying all employees are trained in case of any emergency… under Maritime law – ship could not sail out of the port with out safety equipment on board and trained sailors…
Interesting to see someone trying to wriggle out of it. I wouldn’t say its the same legal loophole as Rosepark though. The Fire Safety Order will always be able to find a Responsible Person, it may take a bit of time and people passing the buck, as we read here, but responsibility for the crime will always be found. That person will be bought to justice, signing the cheques will be a good step in the right direction. Owner, occupier or employer. Good article however this is very different to Rosepark. I can’t see someone being able to wriggle out… Read more »
@WellLand: Well there are loop holes in anything these days plus I don’t think its possible to find something which does not have a slight loop hole even. What we can do is to identify it at the earliest possible stage and try to minimize the risk.
Manshi, Rosepark couldn’t bring prosecutions because the comany had dissolved. This was the loophole. To my knowledge this cannot happen any more. In the article’s case study it has an RP trying to wriggle out of it again however simple checks such as who pays the bills resulted in identifying the RP. I fail to see where the “risk” is, it may become harder as time goes on but company directors are registered, a judge can decide if it comes down to it but there isn’t a viable “loop hole”
good point, but any legal system is not perfect… but person responsible for a crimeshould not get away with it…
As I read it the main problem with the prosecution in the Rosepark fire was that the fire occured in 2004 which was before either the RR(FS)O or the Scottish Act came into force. Part of the new legislation was to clearly identify who the Responsible Person is, something that did not happen under the old Fire Precautions Act. Hence all the tricks used in defeating the attempts to prosecute the people involved in Rosepark.
I’m pretty sure the case was only thrown out due to the loophole: http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/7526224.stm
Bear in mind that last attempt was brought under Health and Safety legisaltion not Fire Legislation, it was a last chance.
Hi Guys, as I served in Scotland I can say that the current fire safety legislation as enacted by the Scottish Parliament is very similar to the RRFSO although I feel it is set out in a better way. having said that, I am surprised that only one commentator(Mike Buckley) knows his legislation! The RRFSO and the Fire (Scotland) Act had not been enacted at the time of the fire. Prosecutions for Rosepark were under the Fire Precautions (Workplace) Regulations (which applied to Scotland) and at the time the Fire Precautions Act was still active – both pieces of legislation… Read more »
@Tom Welland: Maybe the miss-management of financials plus not having a proper business strategy might have been the cause.
I have to disagree… as human nature to try to push boundariesor use loopholes and get away… while laughing to the bank…I would think in this case owner try to save money while risking life/safety of others and get away with it under laws loophole… sad…
@Alexander Stephens: Don’t you think this is what happens in most scenarios. It’s a common practice which most does and even the new entrants try it as soon as they enter the market. A bad example set by many indeed.
I think the problem this days – people more thinking about profit than safety…
This is a fascinating comment, Bob, and one that really underlines the complicated picture of legislation, especially in post-devolution UK.
Hi Rob absolutely right, if you noticed that last SI from the last government re the RRFSO was for England only! Not sure how many people picked that one up but fire risk assessors need to be aware just what country they are operating in. I did see a fire risk assessment a while ago that was carried out in Scotland but the legislative reference was the RRFSO!
Leads me right abck to my persistent argument about competency of fire risk assessors.
@Alexander Stephens: I do not see anything wrong in it mate since we all as business people do business expecting profit. No one would do business for a loss.
yes, but where is the right way of doing it and wrong way…when taking short way/using loopholes could destroy lifes…
@Alexander Stephens: Yes indeed but being cautious will help you to mitigate the risks to some level.
thanks, I would see the solution as to close the loopholes in the law… and more fire safety…
@Alexander Stephens: Same here mate. I think it will consume some time.
thank you, the problems this days once loophole get close, some one creates a lobby to open other loophole… modern politics…
@Alexander Stephens: Exactly and these political interferences do make things worse for many.
Politics is a durty game, one way or other… at the end we as a citizens pay the price in any case…
While that’s correct in general terms, I don’t think it’s the case for the fire industry. People aren’t seeking loopholes generally, it’s just negligence that leads to most breaches.
@Robert Brown: Yes mate you are right on the matter. Negligence is the start for all the causes but negligence happens because someone else has left a loop hole somewhere for others to make mistakes.
@Alexander Stephens: Politics always is a dirty game for sure and true on the fact about citizens have to pay for it but we do not have any solution for it arnt we ? Helpless of course.
No we do not… but from my past – I prefer by choice North American/USA/UK way of life over Russian… Way of life in USA/Canada/UK is not perfect… but in my opinion it a right way of life for humanity… in this global reality…
ps: if NK/Russia/China/Iran will start up a war – God forbid even at my old age and being sick – I will be enlisting at Canadian Army… to fight/protect the way of life… same as most of my neighbors…
Wow this discussion’s come a long way to end up talking about WW3. Nice to hear you’d be on the frontline, Batye. I don’t think it’ll come to that, at least I certainly hope not!
I suppose you’re right actually manshi, yes. We’ll never close all the loopholes, but should certainly try.
thank you, Rob, I do hope nor we or our kids will have to see WWIII but as loyal Her Majesty Queen’s subject – Canadian citizens – I’m willing and able to answer call to arms if need it… to protect our way of life… simple… I’m saying how it is… My answer to NK propoganda… 🙂