Fire safety — a hot topic!

A recent case on the issue of fire safety — or, more exactly, the provisions of the Regulatory Reform (Fire Safety) Order 2005 — has proved both interesting and instructive on the desirability and necessity of precision when drafting an indictment for proceedings brought before the Crown Court. [R v Michael Wilson [2013] EWCA Crim 1780]

Part 1 of the order imposes a number of duties on “the responsible person” in article 5, which are then set out, principally, in articles 8 to 22. They consist of such things as taking fire precautions, carrying out a risk assessment, and making fire-safety arrangements. The same duties are imposed by article 5(3) on “every person other than the responsible person… who has, to any extent, control of the premises…”.

“The responsible person” is defined in article 3 as :
a. In relation to the workplace, the employer (if the workplace is to any extent under his or her control)
b. The person who has control of the premises (if not a workplace) in connection with the carrying-on by him/her of a trade, business or other undertaking (for profit or not)
c. The owner, where the person in control of the premises does not have control in connection with the carrying-on by that person of a trade, business or other undertaking.

Article 32 (1)(a) provides “It is an offence for any responsible person or any other person mentioned in article 5(3) to fail to comply with any requirement or prohibition imposed by articles 8-22…”

Fire at a hotel led to breaches being noted

The defendant in this recent case, a Mr Wilson,  owned the Chumleigh Lodge Hotel in Finchley, North London, through a company called the Chumleigh Lodge Hotel Limited. He was the sole director of the company. A fire broke out on the premises after a resident failed to properly extinguish a cigarette in his bedroom, which resulted in the calling of the fire brigade, who apparently had little difficulty extinguishing the fire. However, while attending, the fire officers took the opportunity to do a little investigating and various apparent breaches of the 2005 order were noted and a number of charges resulted.

The company was charged as being the “responsible person” under article 3.

Unfortunately for Mr Wilson, article 32(8) provides “Where an offence is proved to have been committed with the consent or connivance of, or attributable to any neglect on the part of, any director, manager… or any person purporting to act in any such capacity, he as well as the body corporate is guilty of that offence, and is liable to be proceeded against and punished accordingly.” Thus, it was thought necessary and appropriate to prosecute him in his personal capacity as well.

Individual and corporate indictments

Six breaches of various duties were alleged, and both he and the company were separately indicted in relation to each breach, making a total of 12 counts on the indictment. Each breach was represented by a pair of counts: one against the company, and one against Mr Wilson himself. Both defendants relied on the ‘statutory’ defence in article 33, namely that all due diligence had been exercised and all reasonable precautions taken. However, the jury returned guilty verdicts in relation to all 12 counts, and both the company and Mr Wilson received substantial fines.

The subsequent appeal focused on the words “that offence” in article 32 (8). The indictment alleged, as against the company in the “statement of offence”, that the relevant article had been breached, (eg Count 1 , article 9: failing to make a suitable and sufficient assessment of fire risk) and concluded with the words “contrary to article 9(1) and 32(1)(a) of the Regulatory Reform (Fire Safety) Order 2005”.

As against Mr Wilson, the statement of offence in the individual counts he faced on the indictment alleged only offences contrary to article 32(8). The Crown’s case was that he was complicit in all the offences committed by the company, but – in relation to the matching count of each pair – he was not directly charged with a breach of the relevant article himself (eg article 9 in relation to Count 1 against the company, which was Count 2 against himself) but only with breach of article 32 (8).

On appeal

The defence argument on appeal was:
(i) Mr Wilson was not, himself, charged with a breach of the individual articles (eg 9(1))
(ii) Article 32(8) did not create a stand-alone offence, hence the use of the words “that offence” in article 32(8) referring to an offence under one of the other provisions
(iii) This meant that if he was charged under 32(8), he was charged with offences not known to law and for the indictment to be valid as against him, he should have been charged with the same offences as the company and not with offences contrary to article 32(8)
(iv) As there was no power to amend an indictment after verdict, the situation could not be remedied.

The prosecution contended the indictment was correctly framed and that the order did create a discrete offence under article 32(8). Alternatively, the prosecution contended – at worst – it was a case of mislabelling,(eg by the omission of reference to the correct article in Count 2) and the convictions were safe.

The Court of Appeal decided article 32(8) does not create its own offence. Thus, Mr Wilson (in Count 2, for example), should not have been charged contrary to 32(8) but contrary to article 9(1) and 32(1)(a). In coming to its conclusion on this point, the court seemed to be particularly impressed that there is no provision in the legislation for a penalty for a breach of article 32(8), whereas there are prescribed penalties for all other offences.

So far, so good…?

So far, so good for Mr Wilson — especially as he had retained the services of leading counsel to present his case. However, the court went on to consider whether the defect was remediable, and ominously paused to observe that it was common ground that the appellant was in no way prejudiced by the error. The court did, however, decide that if, as contended by the defence, the indictment was a nullity, then there was no power under s.3 of the Criminal Appeal Act 1968 to substitute a conviction for an alternative offence.

The thrust of the defence argument was that the indictment was indeed a nullity, as it did not disclose offences known to law against Mr Wilson, as offences cannot be committed contrary to article 32(8).

After reviewing various authorities, the court decided that “not every error in an indictment renders it a nullity, where it is merely defective a conviction may not be unsafe”. And unsafety is a question of fact and degree “in which considerations of prejudice and unfairness will, at the least, loom large.”

The court justified the stance it was about to adopt by going on to say that the particulars of offence were impeccable in their clarity of what was, in fact, alleged, and the error was, in reality, one of wrongly labelling the offences as distinct from charging offences which did not exist, and to allow the appeal “would place an undue and unacceptable premium on technicality.”

The court expressed the view that the statement of offence (for Count 2 against Mr.Wilson) ought to have read, “…contrary to articles 9(1), 32(1)(a) and 32(8)” and concluded “We accept that upholding the appellant’s conviction will have the less than ideal effect of leaving the defendant on paper convicted of a mis-labelled offence. So be it. The appellant’s conviction was not in our judgement unsafe. The indictment here was not a nullity, it was defective but the defect occasioned neither unfairness nor prejudice. This appeal must be dismissed.”

The moral of the story

• For prosecutors: in terms of indictment-drafting, it is better – but not necessarily imperative – to get it right first time. And it is better to mislabel than wrongly charge altogether.
• For defendants: the Court of Appeal affirm their increasing reluctance to allow appeals on points of technicality that are otherwise without merit, especially where the alternative course would involve the considerable double expense of a retrial and making a defendant’s costs order.
• For hoteliers: adopt a strict no-smoking policy throughout.
• And, as for Mr Wilson, spare him a thought. Through what may not have been the greatest fault of his own: first, his hotel was set on fire; then he was tried and convicted at Blackfriars Crown Court, both in his own name and that of his company; then, to cap it all, he got his fingers burnt in the Court of Appeal!

Richard Clews

Richard Clews deals with a broad range of regulatory offences and breach of safety regulations, with experience in the magistrates’ courts both as a deputy district judge and an advocate. See Richard’s profile.