London Borough of Southwark, R (on the application of) v London Fire and Emergency Planning Authority & Anor [2016] EWHC 1701 (Admin)

Case No CO/4905/2015[2016] EWHC 1701 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2016
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)MRS JUSTICE McGOWAN D.B.E.
Between
THE QUEENClaimant(on the application ofClaimantLONDON BOROUGH OF SOUTHWARK)ClaimantLONDON FIRE AND EMERGENCY PLANNING AUTHORITYDefendantHEALTH AND SAFETY EXECUTIVEInterested Party
Richard Matthews Q.C. , Jamas Hodivala and Eleanor Sanderson(Instructed by Clyde & Co LLP, London) for ClaimantJames Lewis Q.C.and Jonathan Moffett(Instructed by Thomas Davies, Legal and Democratic Services) for Defendant for The Interested Party did not appear and was not representedHearing Hearing dates: 17-18 May 2016
JudgmentSir Brian Leveson P:
[1]This is the judgment of the court to which both members of the constitution have made a substantial contribution.[2]On July 3rd 2009, there was a serious fire at Lakanal House, Sceaux Gardens, Camberwell which is a 14-storey tower block of flats owned by the London Borough of Southwark (“Southwark”). Tragically, six people lost their lives and many of the other residents of the block were injured. All suffered the distress of being evacuated from the block and the turmoil of being re-housed. Inquiries after the fire identified areas of concern about the condition of the building before the fire and the actions of the London Fire Brigade on the day.[3]Following the fire, comprehensive investigations were undertaken by the Metropolitan Police, the Health and Safety Executive (“the HSE”) and the London Fire and Emergency Planning Authority (“the Fire Authority”). In addition, a lengthy inquest was conducted a jury and by Her Honour Frances Kirkham who, for the purpose, was appointed Assistant Deputy Coroner for the Inner South District of Greater London. This challenge does not concern any of these investigations as such; rather, it is a challenge by Southwark addressed to the Fire Authority in relation to the Fire Authority’s decision to retain responsibility for the consideration and potential prosecution of Southwark for offences under the Regulatory Reform (Fire Safety) Order 2005 (“RRO”). In short, Southwark asserts that the Fire Authority is the responsible body for the operation and organisation of the London Fire Brigade and is therefore conflicted in relation both to the decision and any possible prosecution and that these should be passed to the Health and Safety Executive (“HSE”) which, although an interested party in the litigation, has taken no part in it save only for providing a short response.[4]In order to understand the context, it is necessary first to set out the statutory framework but, so that there is no misunderstanding as to the scope of this litigation, it is worth making one further preliminary observation. Although the question at issue concerns potential criminal proceedings, save to the extent that the question of conflict of interest falls to be considered, this challenge does not involve any assessment of the comparative responsibility for the fire and the subsequent tragedy that befell the residents of Lakanal House. Neither does it have any impact on claims for damages which have all been resolved.

Legislative Background

[5]Modern legislation governing health and safety begins with the Health and Safety at Work Act 1974 (“the 1974 Act”) and has developed so as to provide that occupants of buildings, whether as residents or employees, are entitled to a minimum standard of safety so that any falling below that standard will be properly investigated and, if appropriate, prosecution or other remedial steps will follow. Thus, in relation to fire safety, fire-fighting and enforcement in these areas, Fire and Rescue Authorities (which include the Fire Authority) are subject to duties under the Fire Rescue and Services Act 2004 (“2004 Act”). In relation to fire safety, these are set out in s. 6 in these terms:
“(1) A fire and rescue authority must make provision for the purpose of promoting fire safety in its area. (2) In making provision under subsection (1) a fire and rescue authority must in particular, to the extent that it considers it reasonable to do so, make arrangements for— (a) the provision of information, publicity and encouragement in respect of the steps to be taken to prevent fires and death or injury by fire; (b) the giving of advice, on request, about— (i) how to prevent fires and restrict their spread in buildings and other property; (ii) the means of escape from buildings and other property in case of fire.”
[6]In relation to fire-fighting, s. 7 of the 2004 Act provide:
“(1) A fire and rescue authority must make provision for the purpose of— (a) extinguishing fires in its area, and (b) protecting life and property in the event of fires in its area. (2) In making provision under subsection (1) a fire and rescue authority must in particular— (a) secure the provision of the personnel, services and equipment necessary efficiently to meet all normal requirements; (b) secure the provision of training for personnel; (c) make arrangements for dealing with calls for help and for summoning personnel; (d) make arrangements for obtaining information needed for the purpose mentioned in subsection (1); (e) make arrangements for ensuring that reasonable steps are taken to prevent or limit damage to property resulting from action taken for the purpose mentioned in subsection (1).”
[7]In addition, fire authorities have an enforcement responsibility in respect of the duties of responsible persons under the RRO. To understand the context, these provisions (and, in particular the duties of the responsible persons) must be set out in some detail. Thus, Article 6(1)(a) provides that the RRO does not apply to domestic premises, although the parties agree that its provisions apply to the communal parts of a block of residential flats Thus, Article 5(2) of the RRO provides:
“Where the premises are not a workplace, the responsible person must ensure that any duty imposed by articles 8 to 22 or by regulations made under article 24 is complied with in respect of those premises, so far as the requirements relate to matters within his control.”
[8]A “responsible person” is defined by Article 3(b)(ii) as including:
“… 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.”
[9]In terms of duties, Article 8 provides:
“The responsible person must— (a) take such general fire precautions as will ensure, so far as is reasonably practicable, the safety of any of his employees; and (b) in relation to relevant persons who are not his employees, take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe.”
[10]“Relevant persons” are defined by Article 2 as:
“(a) any person (including the responsible person) who is or may be lawfully on the premises; and (b) any person in the immediate vicinity of the premises who is at risk from a fire on the premises, but does not include a fire-fighter who is carrying out his duties in relation to a function of a fire and rescue authority under section 7, 8 or 9 of the Fire and Rescue Services Act 2004 (fire-fighting, road traffic accidents and other emergencies), other than in relation to a function under section 7(2)(d), 8(2)(d) or 9(3)(d) of that Act”
[11]“General fire precautions” are defined in Article 4(1) as:
“(a) measures to reduce the risk of fire on the premises and the risk of the spread of fire on the premises; (b) measures in relation to the means of escape from the premises; (c) measures for securing that, at all material times, the means of escape can be safely and effectively used; (d) measures in relation to the means for fighting fires on the premises; (e)measures in relation to the means for detecting fire on the premises and giving warning in case of fire on the premises; and (f)measures in relation to the arrangements for action to be taken in the event of fire on the premises, including— (i) measures relating to the instruction and training of employees; and (ii) measures to mitigate the effects of the fire.”
[12]A further duty is set out in Article 9(1). Under that provision, the responsible person must:
“… make a suitable and sufficient assessment of the risks to which relevant persons are exposed for the purpose of identifying the general fire precautions he needs to take to comply with the requirements and prohibitions imposed on him by or under this Order.”
[13]A final relevant duty is laid down by Article 17(1), which provides:
“Where necessary in order to safeguard the safety of relevant persons the responsible person must ensure that the premises and any facilities, equipment and devices provided in respect of the premises under this Order or, subject to paragraph (6), under any other enactment, including any enactment repealed or revoked by this Order, are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair.”
[14]Finally, the RRO contains enforcement provisions.

(a) , it is an offence for any responsible person to:

“… fail to comply with any requirement or prohibition imposed by articles 8 to 22 and 38 (fire safety duties) where that failure places one or more relevant persons at risk of death or serious injury in case of fire.”
[15]Insofar as is relevant, under Article 25(a), the “enforcing authority” for the RRO is:
“… the fire and rescue authority for the area in which premises are, or are to be, situated…” and the duty on that authority is contained in Article 26(1) in terms to: “… enforce the provisions of this Order and any regulations made under it in relation to premises for which it is the enforcing authority and for that purpose, except where a fire inspector or other person authorised by the Secretary of State is the enforcing authority, may appoint inspectors.”
[16]This is not a duty that must be carried out by the authority in all cases. As a result, Article 26(3) provides:
“A fire and rescue authority has power to arrange with the Health and Safety Commission or the Office of Rail Regulation for such of the authority’s functions under this Order as may be specified in the arrangements to be performed on its behalf by the Health and Safety Executive or the Office of Rail Regulation, as the case may be, (with or without payment) in relation to any particular workplace.”
[17]In that connection also, a fire authority may also arrange for another fire authority to enforce the RRO under section 101 of the Local Government Act 1972:
“(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—…(b) by any other local authority.”
[18]It flows from this statutory regime that Fire and Rescue Authorities generally (and the Fire Authority in particular) have at least three quite separate and distinct responsibilities. First, they must promote fire safety; second, they must be able to fight fires; third, they must enforce the regulations in relation to fire safety. The Fire Authority approaches these responsibilities by maintaining distinct and separate divisions within its structure. Since 2015 it has been divided into a three directorate structure. These consist of Operations, Finance and Contractual Services, and, thirdly, Safety and Assurance. The further functions of Legal and Democratic Services, Strategy and Performance, and Communications do not sit within any of these three directorates but report directly to the Commissioner. Thus the Legal Services department has a place in the structure totally separated from the operational arm that is the Brigade. It acts independently of the operational and managerial structure and does not report to or through any other branch of the Fire Authority, although the Head of Legal and Democratic Services (or a senior colleague) makes the decision whether cases investigated by the Fire Safety Regulation staff should be taken to Court for prosecution in consultation with the Assistant Commissioner for Fire Safety Regulation.[19]With that rather lengthy introduction into the legislative framework, the impact of that framework on the work of the Fire Authority and the way in which the Fire Authority goes about discharging its responsibilities, it is appropriate to turn to consider the specific circumstances that have arisen in this case.

The Background

[20]Between July 2008 and April 2009, mindful of its duties as the ‘responsible person’ within the meaning of the RRO and in order to comply with them, Southwark began the process of organising its approach to Fire Risk Assessments (“FRAs”) of the common parts of its housing stock. To do so, it decided to use internal resources to carry out the FRAs and to engage the London Fire Brigade (“the Brigade”), for which the Fire Authority is responsible, to train its housing officers to undertake those assessments.[21]To assist those responsible for carrying out FRAs in relation to residential blocks, the Brigade provided support and advice on the production of an FRA template, together with an inspection pro-forma, guidance and procedure documents for FRAs. The Brigade always made it clear that it could not endorse any such documents and provided two alternative set programmes of training. The first involved a course which took four days; the second option was a program which lasted one day only although the Brigade made it clear that this course did not itself confer competence on the housing officers.[22]Notwithstanding its limitations, Southwark chose the latter course for its officers both on the grounds of cost but also because it would involve officers spending less time out of the office. In total, 120 housing officers were trained in eight one-day sessions (15 officers per session) in the period from 14 November 2008 to 15 January 2009. Although photographs of Southwark housing stock were incorporated into the documentation, the course remained a set programme and was not tailored to the specific needs of Southwark.[23]On 17 March 2009, Assistant Commissioner Turek, then Assistant Commissioner for Fire Safety Regulation at the Brigade and representing the relevant enforcing authority under the 2004 Act, wrote to Southwark in relation to its responsibilities under the RRO as a social housing provider. The letter drew attention to matters such as the replacement of windows and fire-stopping barriers in wall cavities as points that should be considered as part of an appropriate and sufficient risk assessment. Southwark did not amend its FRA documents in light of receiving this letter.[24]By 3 July 2009, while FRAs had been carried out on a large number of the common parts of Southwark’s residential blocks, the FRA for Lakanal House had not been completed. At 16:15 that afternoon, a fire broke out in flat 65 on the 9th and 10th floors of the Lakanal House; the emergency services were summoned and the Brigade attended.[25]Fire and smoke spread up and down the exterior and through the interior of the building to other maisonettes, including those on the floors above and below flat 65. Fire spread to flat 79, directly above flat 65, where one resident who was trapped called 999. Smoke spread to the bathroom of flat 81 (adjacent to flat 79) in which five persons were sheltering; they also spoke to Brigade Control. The six residents in flats 79 and 81 remained in their flats and lost their lives.[26]Following the fire, the Metropolitan Police (“MPS”), the HSE and the Fire Authority commenced an investigation into the cause of the fire, how and why it spread in the way that it did, how the victims died and whether or not there was evidence that criminal offences had been committed by parties including Southwark and the Brigade. The police focused on offences of homicide (including corporate manslaughter); the HSE were primarily concerned with the 1974 Act and the Fire Authority with the RRO. In a liaison agreement, it was agreed between the bodies that the police would “at all times have primacy”. However, where the investigation concerned offences under the RRO, the MPS and the Fire Authority would, as far as practicable, conduct the investigation jointly.[27]There were other detailed provisions of the agreement. Thus, if the MPS interviewed witnesses in relation to offences under the RRO or the 1974 Act, it agreed to invite officers from the Fire Authority or the HSE to attend those interviews and ask questions. The MPS were to retain all exhibits and materials, with the Fire Authority and the HSE entitled to view them on request. In the event that the police had insufficient evidence to charge any party with a serious criminal offence, the Fire Authority were free thereafter to conduct its own investigation under the RRO. Similarly, the HSE were also able to carry out an investigation under the 1974 Act independently and, if appropriate in the exercise of its discretion, institute legal proceedings which might include prosecution.[28]These inquiries were not the only investigations into the fire. The Chief Fire and Rescue Adviser (Sir Ken Knight) prepared a report dealing with the emerging issues arising from the fire for the Secretary of State which, on 30 July 2009, the Department for Communities and Local Government published. In that report, Sir Ken noted that the three investigators were considering potential conflicts of interest and that there was the possibility to transfer responsibility for the decision to prosecute from the Fire Authority to the HSE in certain circumstances. He made it clear: “It is understood that the Metropolitan Police Service, Health and Safety Executive and [the Fire Authority] are considering areas of investigation and whether potential conflict arises where the body responsible for the enforcement of legislation may also be subject of investigation. In the case of the Fire Safety Order it is recognised that [the Fire Authority] (LFEPA) is able to transfer its responsibility for the investigation and enforcement of the Fire Safety Order to the Health and Safety Executive under Article 26(3) of the Order”.[29]This possibility of conflict of interest immediately drew a response from Southwark. On 14 August 2009, its solicitors wrote to Assistant Commissioner Turek, copied to the police, putting the Fire Authority on notice as to Southwark’s concerns regarding the conduct and position of the Fire Authority. They drew his attention to what Sir Ken Knight had said and continued:
“[The Authority] is aware of the history of its co-operation and liaison with the [Brigade] and the direct involvement that [the Authority] had with [the Brigade] in relation to the discharge by [the Brigade] of its responsibilities under the Fire Safety Order prior to the fire at Lakanal House, not least the following: The training of the [Southwark] staff in relation to the undertaking of a fire safety risk assessment. The preparation of the fire risk assessment template The preparation of guidance and procedures.”
The preparation of the fire risk assessment template The preparation of guidance and procedures.”

The preparation of the fire risk assessment template

[30]The letter also set out public comments made by the Fire Authority in relation to Southwark’s conduct which were said to demonstrate a lack of impartiality. Finally, the letter noted that the Fire Authority must have been subject to the investigation conducted by the HSE investigation under the work-related deaths protocol and that in such circumstances, it was inappropriate for the Fire Authority to take any part in the investigation of matters touching upon the cause of death of the six residents, including compliance with the RRO.[31]Also on 14 August 2009, a joint investigators’ meeting was held between the police, the HSE and the Fire Authority. It was agreed that no conflict of interest could be identified. Further meetings between the MPS, the HSE and the Fire Authority were held on 9 September 2009, 14 December 2009 and 11 January 2010 where it was again agreed that no conflict of interest had been identified but that the matter would be kept under review. Later, on 28 January 2011, the HSE stated that if there was no prosecution of the Fire Authority under the 1974 Act then, in their opinion, no conflict would exist.[32]Southwark pursued its concern about what it alleged to be the Fire Authority’s conflict of interest. On 2 December 2010, its solicitors responded to police requests for further information and, in doing so, relayed to the senior investigating officer, the representations that had been made to the Fire Authority on 14 August 2009. The letter also claimed that the potential conflict had become an actual conflict as:
“The [Brigade/Fire Authority] must necessarily be subject to investigation in relation two aspects of its undertaking: namely, in relation its role [sic] as the enforcing authority and the Fire and Rescue Authority for [Southwark]; and in relation to its conduct of the fire and rescue operation on 3 July 2009.”
[33]For these reasons, the letter concluded by urging the Fire Authority to transfer enforcement responsibility for the RRO in respect of Lakanal House to the HSE pursuant to Article 26(3). This has been Southwark’s position in regard to transferring enforcement responsibility since. It was also the position taken by Southwark’s subcontractors, Apollo and Symphony, whom the Fire Authority was also investigating.[34]On 8 September 2011, the Fire Authority assured Southwark that there was no conflict:
“[the Fire Authority’s] investigation under the [RRO] relates primarily to the state of the affairs prior to the fire. The fire safety investigation under the RRO is not concerned with fire-fighting… [The one-day course] was generic in nature and attendance upon it did not confer competence or provide proof of compliance with the responsible person’s duties.”
[35]As part of the investigation, and in response to a request for an interview under caution from the Fire Authority, Annie Shepperd, the Chief Executive of Southwark, prepared a statement that was sent to the Fire Authority on 19 October 2011. That statement again reiterated Southwark’s concern as to what it perceived to be the Fire Authority’s conflict of interest. The Fire Authority responded on 28 October 2011, stating that the issue had been kept under review by the Fire Authority, HSE and the police and the Authority was satisfied that there was no conflict at that time. On 4 November 2011, Ms Shepperd attended for an interview under caution conducted by Mr Kennett, the investigation officer at the Fire Authority into suspected breaches of the RRO.[36]On 25 November 2011, the MPS file was passed to the Crown Prosecution Service who, on 31 May 2012, confirmed that they were of the opinion that there was insufficient evidence to warrant bringing charges against any person or corporation for any offence of homicide.[37]Following the conclusion of that criminal investigation, the inquests could be held and joint inquests into the six deaths were held at Lambeth Town Hall commencing on 14 January 2013. They concluded when the jury delivered narrative verdicts on 28 March 2013. In their six narrative verdicts the jury found the initial response to the fire to be adequate and timely. However, it also made the following criticisms of the Brigade: i) Fire fighters could have channeled resources more heavily towards search and rescue rather than active fire fighting. ii) In particular, insufficient efforts were made to prioritize Flat 81 and to deploy breathing apparatus wearers specifically to this location in time to save lives. iii) Moving the bridgehead down the building placed demands on time and resources, in particular requiring more manpower and using more oxygen from breathing apparatus, which hampered rescue attempts. iv) When speaking to occupants, given the worsening smoke, it would have been appropriate for the Brigade to have used such calls to explore potential routes and means of escape, rather than giving the standard advice to “stay put” and wait for rescue by firefighters, which relied heavily on the assumption that such persons would be rescued. v) Information from callers to brigade control officers as to the level of smoke and fire was not effectively shared with, or acted upon, by Brigade personnel at the scene. vi) The training of Brigade control officers failed to promote active listening or to encourage operators to react to dynamic or unique situations. vii) There was no record of minimum training requirements being met by Brigade control officers between 1994 and 2009 and training documents were contradictory and inconsistent, particularly in regard to either “staying put” or “getting out” when there is a fire in building. viii) The firefighters had little knowledge of the layout and numbering systems of Lakanal House, which meant maisonettes where people were trapped were not reached quickly enough to save the occupants.[38]The jury also criticised Southwark and the contractors it had hired to work on Lakanal House as follows: i) Window panels were not class 0, as required, which meant the fire spread from maisonette to maisonette more quickly – this was due to a serious failure on the part of Southwark, its contractors, and its subcontractors. ii) Southwark did not consider the fire safety of work done to one of the maisonettes before it gave approval. iii) The fitting of pipework in the 1980’s was a missed opportunity to put in place fire stopping around pipes leading into flats, and segmentation within the ceiling itself that would have offered adequate protection from fire. iv) Major refurbishments in 2006/7 provided numerous opportunities, which were missed, to consider whether the level of fire protection at the building was adequate. v) In this context, there being no fire seals on doors, a lack of fire-stopping on internal pipework and roof cavity segmentation and panels failing to provide adequate resistance contributed to a serious failure of compartmentation, leading to occupants being significantly more exposed to fire and smoke. vi) Southwark did not prioritise carrying out fire risk assessments in all of its properties and, by 3 July 2009, Lakanal House had not been assessed. vii) Had a FRA been carried out at Lakanal House, it is possible that features here mentioned may have been highlighted for further investigation.[39]On the same day, pursuant to Rule 43 of the Coroner’s Rules 1984, the Assistant Coroner wrote to the Fire Authority making recommendations. She began by acknowledging that the Brigade had undertaken extensive work to learn from their experience of the fire at Lakanal House and had reviewed existing policies and introduced new policies in respect of a number of matters of significance. She went on to make recommendations about raising public awareness of fire safety, sharing information, familiarisation and home safety visits, reviewing its policy and procedures concerning incident command and further training to enhance performance. The Fire Authority responded on 23 May 2013 and proposed action in respect of each recommendation.[40]Also on 28 March 2013, the Coroner wrote to Southwark making recommendations. She began by recording the fact that fire risk assessments had by that time been undertaken in all high rise residential buildings in the Borough and that fire safety information and advice had been given to residents of all such buildings. She went on to make recommendations as to information and guidance to be given to occupants of flats and maisonettes in high rise buildings, signage in high rise residential buildings, policies and procedures concerning fire risk assessment, training of staff engaged in maintenance and refurbishment work on existing buildings, access for emergency vehicles and the retro fitting of sprinklers. Southwark responded to the recommendations on 23 May 2013 and proposed action in respect of each.[41]At the conclusion of the inquest, relatives of those who died in the fire commenced claims for damages both in their own right and on behalf of the estates of the deceased, against Southwark, Apollo (one of Southwark’s contractors) and the Fire Authority as joint defendants. The Fire Authority engaged independent Queen’s Counsel and junior counsel to advise on these claims and it filed a full defence to all of the claims. One of the main arguments advanced by the Fire Authority was that it was not, as a matter of law, fixed with a duty of care in relation to how it conducted the firefighting operation. In the event, on 25 November 2013, a joint settlement was reached as part of a global settlement of all the claims against Southwark, Apollo and the Fire Authority. The agreement was confidential but has been publicly disclosed in the proceedings: without any admission of liability, the Fire Authority contributed 22.5% of the damages.[42]On 23 April 2014, the Fire Authority wrote to Southwark’s solicitors to inform Southwark that it had continued its investigation independently of the police and had identified a number of potential offences committed under the RRO. The Fire Authority relied upon two expert reports prepared by Mr David Crowder, dated 13 February 2014 and 16 April 2014 respectively. Given that the offence under Article 32(1)(a) is concerned with failures that put individuals at risk of death or serious injury in case of fire, Mr Crowder began both reports by making clear:
“This report is not directly concerned with the events of [the fire on 3 July 2009] but the evidence collected as a result of the investigation into the fire has necessarily provided information which informs this report… My review is… principally concerned with the condition of Lakanal immediately prior to the fire, but based upon evidence gathered following the fire.”
[43]In line with this starting point, the second report follows a five-fold structure throughout: for each area of analysis it identifies a deficiency, the “extent to which [the] deficiency places [rather than placed] relevant persons at the risk of death or serious injury”, Articles of the RRO engaged by the deficiency, person(s) responsible and evidence relied upon. Again in line with his starting point, Mr Crowder referred to the events of 3 July 2009 to make his points about risk prior to the fire. For example, with regard to ‘boxing in’, he noted:
“… the ‘boxing in’ that was present did not afford protection to relevant persons and did not afford protection to the means of escape or the areas to be used by fire fighters; fire and smoke were able to pass more quickly from one side of the compartment to the other… The increased quantities of smoke increased the concentrations of irritant and toxic gases to which relevant persons in the building were exposed. These increased concentrations would reduce the amount of time required for the dose of toxic gases to become fatal… The increased quantities of smoke would make use of the means of escape initially difficult, later untenable (as was the case during the incident). The lack of protection to the areas of the building intended for use by fire fighters meant conditions were made more difficult and ultimately resulted in delays to fire fighting activity (particularly rescue), significantly increasing the level of risk to which relevant persons were exposed.”
[44]Similarly, with regard to suspended ceilings, Mr Crowder concluded:
“… the material involved in the construction of the suspended ceiling contributed to the spread of fire in the common corridor and to the overall fuel load in the common corridor. In addition, the absence of any subdivision of the cavity above the suspended ceiling meant that there were no barriers to the rapid fire spread that occurred. These factors contributed to the severity of the conditions encountered by the [Brigade]…”
[45]On 3 July 2014, Southwark served a judicial review pre-action protocol letter on the Fire Authority, setting out the conflict of interest problems previously identified and how they allegedly led to a perception of bias. On 21 July 2014, the Fire Authority responded saying that no decision to prosecute had been taken and the issues raised in the pre-action protocol letter would be considered afresh prior to any enforcement decision being taken. Further, the Fire Authority assured Southwark that it would provide a decision on whether to transfer enforcement responsibility to the HSE by 31 December 2014.[46]On 20 January 2015, the HSE made it clear that there would be no prosecution of the Fire Authority under the 1974 Act.

The Decision

[47]By letter dated 10 July 2015, the Fire Authority served notification of its final decision to retain the conduct of the investigation. It had taken the allegation of conflict seriously and enclosed with the letter was a copy of a decision not to apply Article 26(3). This had been taken by Valerie Boomla, a senior solicitor within the Fire Authority seconded from a different department specifically for the purpose of making this decision, on behalf of Assistant Commissioner Cowup. Ms Boomla was thorough in her analysis. Her decision (in 111 paragraphs covering 33 pages) began by analyzing enforcement of the RRO under Article 26 (at [14]-[18]):
“… Article 26(3) of the RRO does not lay down any circumstances in which the power to make arrangements with the HSE should or should not be exercised… So long as the arrangements relate to “functions under this order” and relate to “any particular workplace” [the Fire Authority] also has a discretion as to the terms of the arrangement with the HSE… [Her] decision was approached on the basis that the power under Article 26(3) to transfer responsibility is, in principle, exercisable in the present case [and] prosecution by another fire authority is, in principle, an option. Parliament has given [the Fire Authority] a tripartite role… (fire safety; fire fighting and regulation/enforcement.) My view is that it does not inevitably mean that there is a conflict and it is not inevitably problematic for [Fire Authority] officers to investigate potential breaches of the RRO in circumstances where [the Fire Authority] has given advice on fire safety and/or where a fire has actually occurred, which [the Fire Authority] has attended in a firefighting role.”
[48]After considering the RRO guidance, the Code for Crown Prosecutors, the Fire Authority’s Enforcement Policy Statement, the HSE Local Authority Circular 22.10: LA Enforcement in premises in which they may have an interest (“Circular 22/10”) and other guidance, Ms Boomla noted that the Fire Authority’s Commercial Training Unit was:
“… institutionally separate from the Fire Safety Regulation Department and both of these were institutionally separate from those carrying out firefighting roles.”
[49]She then considered the nature of the Fire Authority’s investigation, in light of the complaints made by Southwark. In particular, she noted (at [37]): i) The majority of the Fire Authority’s evidence was obtained by, or in conjunction with, the MPS or during the course of the inquests. No further significant evidence gathering was carried out thereafter. ii) Fire Authority officers did not have a significant incentive to seek a distribution of fault that would place undue emphasis on the faults of the other parties in contrast to its own. iii) The RRO investigation was in effect put on hold until the conclusion of the Inquest. iv) If there was a prosecution, there would be the opportunity to challenge Mr Crowder’s evidence in the context of a trial. v) A fair minded and informed observer would not conclude that as result of criticism of the Fire Authority at the inquests and the Coroner’s Rule 43 letter that there is a real possibility that officers would seek to minimise the Fire Authority’s role. vi) Whether there was a conflict of interests was reviewed regularly by the Fire Authority, the MPS and the HSE. vii) The Fire Authority cannot be prosecuted for offences under the RRO because none of their premises are involved and therefore, as referred to in Circular 22/10, the Fire Authority is not the person most likely to be in breach.[50]This led Ms Boomla to conclude that a fair minded and informed observer would not conclude that there was a real possibility that Fire Authority officers with responsibility for the investigation would not conduct it fairly and impartially, even though there might have been scope to do so. Ms Boomla then considered the Fire Authority’s provision of training to Southwark (at [39]-[43]) and previous consideration of conflict (at [44]-[51]), concluding that a fair minded and informed observer would conclude that any objections raised in these respects would not have the effect of tainting prosecutorial decisions. With regard to the Fire Authority’s investigator, Senior Fire Safety Officer David Kennett (at [55]-[62]): i) his investigation was “effectively” “subsumed” into the Police investigation; ii) He did not previously have any involvement with Lakanal House nor with the Commercial Training Unit. iii) There was nothing to indicate that he would act in a way that was unfair or not impartial, by reason of working at the same premises as some of the firefighters that attended the incident. iv) There were no issues with regard to his line managers. v) The Fire Safety Regulation Department is institutionally separate from the on station firefighting management structure and the Commercial Training Unit. vi) There was nothing in the papers to suggest employees of the Fire Safety Department at any stage put loyalty to colleagues above conducting their work professionally.[51]For these reasons, Ms Boomla concluded a fair minded and informed observer would conclude that he would carry out his duties in the professional way expected of a fire investigating officer and would not be unduly influenced by firefighters he met or knew at New Cross. Ms Boomla then went on to respond to each of Southwark’s contentions individually (at [63]-[83]). In this context, she noted that Sir Ken Knight’s comments with regard to Article 26(3) of the RRO were made if there was a conflict and did not address whether there was a conflict. Further, if there were to be a prosecution:
“The prosecution will be conducted by independent counsel and it will be open to the defendants to run any defence legally open to them. This could potentially include a defence that included criticism of the way that [the Fire Authority] conducted the firefighting and other matters on the day of the fire. The trial would be overseen by the judge, who would act to ensure fairness for the defendants and it would be for the judge and jury to determine whether the defendants are guilty.”
[52]Taking all this together, on the first main issue of whether the Fire Authority could lawfully continue with the investigation, Ms Boomla concluded that it was more likely than not that a fair minded and informed observer would, after having considered all the facts, conclude that there was not a real possibility that the officers with responsibility for the investigation would conduct it other than fairly and impartially.[53]Ms Boomla’s decision on the second main issue, namely whether the Fire Authority could take a lawful decision to prosecute, was largely informed by her analysis of the first main issue. She found that a fair minded and informed observer would not conclude that the Head of Legal and Democratic Services, then Mr Atkinson, was biased (at [84]-[106]). Her decision was further informed by the following facts: i) Mr Atkinson’s qualifications and experience as a solicitor and local government officer. ii) Mr Atkinson did not advise on the Inquest, the response to the Rule 43 letter, personal injury claims or the potential HSE prosecution; iii) Mr Atkinson (who was reliant on the investigation) would have to consult the Assistant Commissioner for Fire Safety Regulation before proceeding with any decision to prosecute being taken in accordance with the Code for Crown Prosecutors; iv) Any prosecution would be conducted by independent Queen’s Counsel and junior counsel instructed by the Fire Authority.[54]Finally, Ms Boomla concluded that the Fire Authority could properly conduct the prosecution (main issue three, at [107]-[108]), in light of her findings with regard to main issues one and two and that the Fire Authority should not in any event exercise its discretion under Article 26(3) of the RRO (main issue four, at [109]-[110]).[55]Ms Boomla’s decision constitutes the decision which Southwark seeks to challenge by way of judicial review.

The Approach

[56]Dealing first with a preliminary point, Southwark contends that there are, in fact, two decisions, each of which must be addressed. The first decision was that of 10 July 2015 to retain responsibility for the decision whether or not to prosecute. The second is said to be the decision not to change the first decision. In our judgment, the argument is entirely misconceived: there is but one decision that requires to be assessed. Thus, the original decision continues to operate until it is brought into effect or reversed. In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one. Were it otherwise, the time limit for judicial review of any decision could be re-started following a refused request to change it.[57]The challenge (which requires an assessment, on the specific facts, of the complaint advanced) is based on the primary criticism that to allow the Fire Authority to retain responsibility for the decision whether or not to prosecute would give rise to a perception on the part of the fair minded and informed observer that the Fire Authority might be biased. In addition, the proposition is said to be supported by the argument that the Fire Authority has already taken account of immaterial considerations and that taking the decision to prosecute would be an abuse of the power. Mr Matthews Q.C. for Southwark submits that Ms Boomla has not adequately considered the question of apparent bias. That submission, however, does not properly take account of the careful analysis she makes of all the factors giving rise to an allegation of apparent bias, in particular her conclusion on the position of the individual who it is expected would take the decision.[58]The Fire Authority defends the propriety of its position in its primary submission that there is no possibility of apparent bias because the decision will be taken in the way that has been outlined and will be managed to ensure there is no risk of bias. Further it argues that this challenge is pre-emptive and academic and should only have been brought when the decision whether or not to prosecute has been taken.[59]The test turns on the perception of the independent and well informed observer and is articulated in Magill v Porter [2001] UKHL 67, [2002] 2 AC 357 per Lord Hope (at [103]):
“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.”
[60]Breaking the test down, it becomes a two stage approach as identified in the authorities and, most recently, in Harb v HRH Prince Abdul Aziz bin Fahd [2016] EWCA Civ 556. Lord Dyson MR emphasised that such decisions are always fact specific to the individual case and identified the approach as follows:
“69. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The "real possibility" test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416at para 2 per Lord Hope. As Lord Hope also said in Porter v Magill at para 103, the "real possibility of bias" test "is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias" (emphasis added). … 72. Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there.”
[61]Thus, the fair minded and informed observer is not someone directly concerned with the litigation. The test is objective and assumes that the observer has considered and understood the relevant features of the decision to be taken. It is not to be derived from an instinctive or emotional perspective. In that regard, Southwark does not challenge the propositions of law but, rather, argues that, if it involves the Fire Authority, the process will or might have the appearance of bias to that fair minded and informed observer.

Analysis

[62]In considering whether there would be any real or perceived conflict of interest if the Fire Authority retains responsibility for the decision whether there should be a prosecution or then conducts such a prosecution, it is important to emphasise that any prosecution would be grounded firmly in the state of affairs that Southwark had permitted to develop at Lakanal House prior to the fire. Thus, if an allegation of breach of the RRO is to be established, it will have to be based on the extent (if at all) to which Southwark failed to comply with its statutory duty which is free standing of any failures during the fire itself. On that basis, a number of propositions follow each of which would be appreciated by the fair minded and informed observer.[63]First, the conduct of the Fire Authority (acting through the Fire Brigade) on 3 July 2009 is immaterial. No real problem of “mixed interest” or conflict arises for the Fire Authority. The question which will have to be addressed The questions which will have to be addressed, namely whether any alleged breaches of the RRO resulted in a risk of death or serious injury in the case of fire and whether it is in the public interest to prosecute Southwark, are exactly the same as any other prosecutorial decision arising from a fire in which a fire brigade will almost inevitably have played a part in the fire-fighting or rescue.[64]Second, the evidence of the condition of the building on 2 July 2009 prior to the fire (for example, as to the state of door seals and the standard of boxing in) is well documented and has been objectively assessed. It is a matter of expert analysis whether it gives rise to evidence upon which a prosecution could be brought. A number of matters (such as the fact that there was a failure to undertake fire assessments) are not in issue. Whether these features give rise to a risk of death is matter of scientific evaluation of the evidence of the state of premises before fire.[65]In that regard, the fact that the Fire Authority provided a standardised one day course to Southwark’s employees is irrelevant; it is not suggested that the Fire Authority provided any warranty in relation to the course (indeed, it was made clear that the course did not itself confer competence on housing officers: see [21] of this judgment). In any event, neither is it suggested that Southwark’s responsibilities under the RRO are delegable so that it was for Southwark to ensure that its employees were sufficiently equipped to ensure that Southwark performed its duty.[66]Third, if, contrary to the foregoing, the fire is relevant for any purpose, full and proper investigations have already been undertaken into the circumstances, with the causes of the deaths analysed in a public inquest before a jury which provided clear narrative verdicts criticising both the Fire Brigade and Southwark. These facts are unlikely to be in issue. Such a conclusion is only emphasised by the known result of the civil proceedings.[67]In that regard, Mr Matthews argues that should Southwark plead guilty or be convicted, the judge would have to consider the seriousness of the harm risked by any established breach of the RRO which would inevitably take the court into a consideration of the causes of the fire and the comparative responsibilities of Southwark and the Fire Authority (in its Brigade activity fighting the fire that resulted). There are, in fact, two answers to that submission. First, the narrative findings of the inquest jury (and the recommendations of the coroner) already provides an account. To the extent (if at all) as this assessment has to be made, no prosecutor (whether instructed by the Fire Authority or through the HSE or some other fire authority) would be able to go behind the findings and recommendations. Second, it is no part of the responsibility of the prosecutor to press any view of the facts but, rather, to assist the judge. That task is more likely to be addressed by reference to the law; it is inconceivable that any Newton hearing would be permitted to go behind the conclusions already reached by the inquest jury or such other independent expert opinion that has been obtained.[68]Fourth, the decision whether or not to prosecute and any prosecution will 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. Furthermore, it will be reached with the benefit of advice from independent counsel and based upon the Code for Prosecutors, so that it is taken “fairly, impartially and with integrity”.[69]The decision in this case would be taken in the knowledge of the full scrutiny of those interested in the outcome. Bearing in mind these features and the very careful and comprehensive analysis of the position provided by Ms Boomla, we do not consider it appropriate (or, indeed, realistic) to conclude that the process of a decision by the Fire Authority in the circumstances we have described, whether or not to prosecute Southwark for any breach of the RRO will or might have the appearance of bias to a fair minded and informed observer as defined above. Neither do we consider that the pursuit of any prosecution would be infected by the appearance of bias; in any event, if a prosecution is mounted, the court will doubtless be assiduous to ensure that the criminal justice system operates in a fair way to all concerned.

Conclusion

[70]Neither the MPS nor the HSE (both of which undeniably have an interest in the fair prosecution of wrong doing) saw any difficulty or issue of propriety in the Fire Authority being involved in the investigation and possible prosecution of Southwark for a breach of the RRO. Neither do we. The application for judicial review fails.