Article 32 Offences

Article 32 sets out in detail the Offences that can be committed by a Responsible Person or any other person mentioned in article 5(3) and those offences that can be committed by any person.

This article also provides details of the criminal sanctions for failure to comply with the requirements and prohibitions imposed by the Order and any regulations made under it. The most serious offences are subject to a maximum penalty of a fine not exceeding the statutory maximum in a Magistrates’ Court (currently £5,000) or on conviction on indictment to an unlimited fine and, or

a term not exceeding Two years. Other, less serious offences are subject to lesser maximum penalties.

Where an offence under the Order is committed by a Body Corporate, and it can be proved that the offence is attributable to the act of an officer of the Body Corporate, then that officer can be proceeded against as well as the Body Corporate itself.

Similarly, if it can be proved that the affairs of a Body Corporate are managed by its members, then those members can also be proceeded against.

Article 33 Defence

Article 33 provides a defendant with a defence of due diligence, for example, it is open to the person charged with an offence under the Order to prove he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

The defence of due diligence does not, however, apply where the Responsible Person is alleged to have failed to have taken such general Fire precautions as will ensure the safety of his employees, or to have failed to eliminate or reduce the risk from a dangerous substance present on the Premise. Nor does the defence apply to an employer where failure to comply with the provisions of the Order is due to an act or default of his employees or appointed competent persons.

Article 34 – Onus of proving limits of what is reasonably practicable

Article 34 provides that in any proceedings for an offence under the Order consisting of a failure to comply with a duty or requirement, so far as is reasonably practicable, it is for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement.

What this means in practice is a change from previous Fire law.

The effect is that it is for the Responsible Person to prove what he has done is sufficient in the circumstances.

Under previous laws, such as the Fire Precautions Act 1971, the Enforcing Authority had to prove that it was not sufficient.

Our Fire Risk Assessments are grounded in reasonable practicalities, in regards to both passive and active Fire Safety provisions and procedures. This allows the Responsible Person to comply with their duty and, or meet their responsibilities and to manage their Premise in regards to all matters relating to Fire Safety and, as importantly, to enable them to exhibit safe and proper management and due diligence.

Article 18

It is a legal requirement under Article 18 for the Responsible Person to appoint one or more competent persons to assist him in undertaking measures to comply with the Order.”

For the purpose of the Order, “competent” means a person who has sufficient training and experience or knowledge and other qualities to enable him to undertake measures needed to comply with the Order.

The Order itself appears to imply that if you do not have the accepted competency yourself and do not appoint someone who does, then not only are you denying yourself any possible defence you are actually ignoring a legal requirement.