On 3 July 2009, there was a fire at Lakanal House in Camberwell, South London. The incident resulted in six fatalities. It has taken over seven and a half years for Southwark Council to be sentenced, following a guilty plea to four offences under the Regulatory Reform (Fire) Safety Order 2005 (FSO).
The scale and devastation of the fire at Lakanal House led to new guidance for those risk assessing multi-occupation residential buildings and the Coroner's Inquest process resulting in numerous "rule 43" letters designed to prevent future deaths.
In the aftermath of the criminal sentencing process, what changes could we expect to see to the enforcement framework in which offenders are punished for committing fire safety offences?
Increases in Fire Safety sentencing
Southwark Council received a fine of 270,000 (reduced from 400,000 on account of its guilty plea) and was also ordered to pay 300,000 in costs.
Interestingly, the definitive guideline for the sentencing of Health and Safety Offences (the "Guideline") does not apply to fire safety. During the Guideline's consultation period, the Sentencing Council considered "that applying the factors in the guideline to offences involving risk of fire had the potential for distorting sentence levels" (Sentencing Council Response to Consultation, November 2015).
It is clear that, had the Guideline been applicable, the Council's fine could easily have exceeded a million pounds. This is on the basis that the Council would have been treated as, at least, a "Large" company (based on the 1.9 billion turnover in its 2015/16 annual revenue budget), the seriousness and likelihood of harm, as evidenced by the six fatalities, would likely have fallen within Harm category 1 and, in the event the Council's culpability was found to be "High". The starting point for a fine in those circumstances is 2,400,000; an almost ten-fold increase on that which was ultimately imposed.
A key driver behind the introduction of the Guideline for regulatory offences was to ensure it is not cheaper for an offender to commit an offence rather than comply with the law in the first instance. In relation to fire safety offences, Bob Docherty (Institute of Fire Safety Managers) believes that "it's the threat of being outside the law that forces people to carry out their `duties'"; however, despite the introduction of the FSO in 2005, the penalties imposed for breaches of fire safety legislation remain relatively low.
The Lakanal House case and the Courts' wider approach to regulatory sentencing may mean that the Government now seeks to take pro-active steps to make the financial risk of committing a fire safety offence equally as damaging as other regulatory offences or, indeed, consider the introduction of a fire safety specific sentencing guideline to provide clarity and transparency on how these cases are sentenced.
"Interestingly, the definitive guideline for the sentencing of Health and Safety Offences (the "Guideline") does not apply to fire safety.
Even if fire safety offences are to receive tougher sentences in the future, the length of time it can take for an organisation to be prosecuted and fined creates a disconnect between the immediacy of the fire risk and the time taken for "justice" to be done.
It has been suggested that, as a way of circumventing the delay between transgression and fine, and to ensure that fire risks are effectively identified and mitigated against, the fire service should be given the power to impose on-the-spot fines on landlords found to be in breach of their duties under the FSO.
Simon Ince (BB7 Fire) has suggested that "By imposing an on-the-spot fine system there would be an effective deterrent which the fire service could use. The current system is too cumbersome, too slow and fire services don't have the resources to go through the prosecution process unless they are certain of gaining a conviction".
However, whilst a system of on-the-spot fines may create a culture of pro-active compliance with the FSO by landlords, there would undoubtedly be an administrative burden attached and there would remain the challenge of effective regulation of those falling outside of such a scheme.