In the line of fire - Fire Authorities can and will prosecute for fire safety failings

R (on the application of London Borough of Southwark) and London Fire and Emergency Planning Authority and Health and Safety Executive [2016] EWHC 1701 (Admin)

In 2009 fire safety failings were uncovered following a serious fire at Lakanal House tower block in South London, which killed six people. On 24 February 2017 at Southwark Crown Court, Southwark Council pleaded guilty to four counts including failing to carry out a suitable and sufficient risk assessment, failure to take general fire precautions and a failure to ensure that premises were subject to a suitable system of maintenance. They were fined £270,000 and ordered to pay costs of £300,000.

The Council’s guilty pleas followed them bringing an unsuccessful judicial review in May 2016 challenging the London Fire and Emergency Planning Authority (“the Fire Authority”) in relation to their decision to retain responsibility for the consideration and prosecution of Southwark for offences under the Regulatory Reform (Fire Safety) Order 2005 (“RRO”). Southwark Council argued that the Fire Authority were conflicted as they were the responsible body for the operation and organisation of London Fire Brigade, who in 2008-2009 had provided the Council support and advice in relation to their approach to fire risk assessments. The Council had argued the decision and possible prosecution should be passed to the Health and Safety Executive.

Under the RRO, Fire Authorities have an enforcement responsibility in respect of ‘responsible persons’ . The statutory regime places three general main duties on the Fire and Rescue Authorities, which were identified during the judicial review as: promoting fire safety; fighting fires and enforcing the regulations in relation to fire safety. The Fire Authority maintains distinct and separate division within its structure, the Legal Services division sitting totally separate from the operational arm.

During the investigation into the fire at Lakanal House, the Fire Authority considered whether there was a conflict of interest in them investigating and considering the prosecution of Southwark Council and determined that it was satisfied there was no such conflict.

In determining the judicial review, Sir Brian Leveson reverted to the test on perception of bias set out in Magill v Porter [2001] UKHL 67, [2002] 2 AC 357:

‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

Sir Brian Leveson noted that the decision whether or not to prosecute and any prosecution would be taken by a solicitor employed in a different wing of the Fire Authority’s structure, with no direct link to the fire and rescue role of the Fire Authority which is separately fulfilled through the Brigade. Further he recognised that any decision to prosecute would be based upon the CPS Code for Crown Prosecutors, so that it is taken ‘fairly, impartially and with integrity’.

Explaining why this prosecution was brought by the Fire Authority, Assistant Commissioner Dan Daly said …

"The fire at Lakanal House was a particularly harrowing incident and our thoughts remain with the families and loved ones of those who died.

Bringing this prosecution against Southwark Council has been about ensuring lessons are learned so we can reduce the likelihood of such a devastating fire ever happening again.

All landlords, including large housing providers, such as councils and housing associations, have a clear responsibility under the law to ensure that their premises meet all fire safety requirements and are effectively maintained to provide protection in the event of a fire and keep their residents safe.

We want them to take the opportunity provided by this court case to remind themselves of exactly what their fire safety responsibilities are under the law and to ensure that everyone in their premises is safe from the risk of fire." [1]

Southwark’s application for judicial review failed on the basis that the Court saw no difficulty or issue of propriety in the Fire Authority being involved in the investigation and possible prosecution of Southwark. The Court did not consider that such a decision to prosecute would or might have the appearance of bias.

The failed judicial review highlights the fact that the Fire Authorities do have powers to investigate and prosecute for fire safety failings and this should serve as a warning to all landlords, large and small, that they will prosecute in appropriate cases. Whilst it is uncommon for Local Authorities to be prosecuted for failings under the RRO, it does happen, as was demonstrated in the Lakanal case. Therefore, landlords must ensure they identify and rectify breaches under the Fire Safety Order, or they may face prosecution.