Rosepark Care Home Loophole Still Possible Under RRO

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.