News Criminal Regulatory 7th Oct 2019

Tom Day secures acquittal of Director of Approved Inspector Company for Fire Safety Order offences

Tom represented a Director of a national Corporate Approved Inspector  in relation to charges brought by the West Yorkshire Fire and Rescue Service (WYFRS) against the Corporate entity under the Regulatory Reform (Fire Safety) Order 2005.  Tom’s client was prosecuted on the basis that the offence was committed with the consent, connivance or attributable to the neglect of the Director.

Approved Inspectors (AIs) are private providers of Building Control Services as an alternative to Local Authority Building Control.  AIs are therefore independent certifiers of compliance with Building Regulations.  All Approved Inspectors must be registered with the Construction Industry Council (CICAIR).  Whether an Approved Inspector is a “responsible person” under the Fire Safety Order 2005 is not believed to have been the subject of a judicial determination.

The allegations in this case arose from the construction of student accommodation in Leeds. In late 2015 the building consisting of 6 floors and being partially timber framed was inspected by Tom’s client on behalf of the Corporate entity in conjunction with the fire service.  Tom’s client had no previous involvement with this construction project as it had been inspected over the course of its construction by an employee of the Corporate AI.  Owing to that individual’s absence on planned leave Tom’s client attended to conduct the inspection prior to certification.  After the inspection by Tom’s client the Corporate AI issued a part final certificate which confirmed that floors 1 – 6 of the building complied with Building Regulations and that the ground floor (which was unfinished) was separated from floors 1 – 6 by fire resistance of at least 1 hour. Shortly after the certification students moved into the accommodation.

Approximately six months later WYFRS were asked to conduct a further inspection of the property by the new building contractors (the previous contractors having been placed into administration).  At that inspection and subsequent inspections WYFRS identified failings in the compartmentation of the building and that the ground floor was not separated from floors 1 – 6 by fire resistance of at least 1 hour. A compartmentation survey revealed alleged serious deficiencies in the construction of the building exposing its occupants to a serious risk of fire spreading uncontrolled such that a prohibition notice was issued preventing the use of the accommodation.

WYFRS alleged that the Corporate AI and Tom’s client had failed to take such general fire precautions as were reasonably required to ensure that those premises were safe, thereby placing one or more relevant persons at risk of death or serious injury in case of fire.

Both defendants made clear in their initial interviews that they considered work had been undertaken to the fabric of the building in the six months after the part final certificate was issued and in a carefully worded defence statement made wide ranging disclosure requests. Legal arguments were raised and skeletons served concerning whether the Fire Safety Order applied to AIs (and, as such, whether an AI could be a “responsible person”) relying on the recent Court of Appeal (Civil Division) judgment in Herons Court v NHBC [2019] EWCA Civ 1423.  Additionally a skeleton argument was served asserting that it was an abuse of process to pursue charges under the Fire Safety Order when the conduct complained of was captured by the Building Control Act 1984. Specific disclosure requests were made in the Defence Statement and upon further enquiries it became apparent that the prosecution may not have complied with their duties of disclosure.

Tom drafted representations inviting the prosecution to offer no evidence against his client. On the first day of trial the prosecution offered no evidence and a not guilty verdict was entered by the Court.

A number of themes are apparent from this case. The question of who is a “responsible person” under the Fire Safety Order 2005 can be legally complex and requires careful consideration, particularly in unusual cases. Additionally, the charging decision of the prosecution must always be looked at critically when the conduct complained of might be captured by a number of offences. Finally, carefully drafted defence statements and persistent requests of the prosecution can reveal failures in the disclosure undertaken by the prosecution.

Tom was instructed by Nick Gianferrari of BLM LLP.

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