Wilson v R

Article 32(8) of the Regulatory Reform (Fire Safety) Order 2005 does not create a separate offence of consent, connivance or neglect by a company director. It makes the director guilty of the same substantive fire-safety offence as the body corporate, provided the required consent, connivance or neglect is proved.

An indictment which mislabels an existing statutory offence is not necessarily a nullity. Where its particulars accurately identify the alleged criminality and the error causes no prejudice or unfairness, the conviction may remain safe under section 2 of the Criminal Appeal Act 1968. The whole indictment, not merely its statement of offence, must be considered.

Michael Wilson, the sole director of Chumleigh Lodge Hotel Ltd, appealed six convictions arising from fire-safety failures at the hotel after a fire in May 2008. The company, as the responsible person, was convicted of six substantive offences under the Regulatory Reform (Fire Safety) Order 2005. Wilson was convicted on matching counts described as offences contrary only to article 32(8).

At Blackfriars Crown Court, before HH Judge Richardson and a jury, Wilson had also relied on the due-diligence defence in article 33. His original appeal alleged inadequate directions on that defence and on the evidence against him.

The Court of Appeal raised a further issue: whether article 32(8) created a discrete offence, and, if it did not, whether the erroneous form of the indictment rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe, despite an error in the statement of offence on each count against the appellant.

2. Article 32(8) of the Regulatory Reform (Fire Safety) Order 2005 does not create a stand-alone offence. It attributes to a director the substantive offence committed by the body corporate where the offence was committed with the director’s consent or connivance, or was attributable to the director’s neglect. The director should therefore have been charged with the relevant substantive duty, article 32(1)(a), and article 32(8), rather than with an alleged breach of article 32(8) alone.

3. The absence of a distinct penalty for breach of article 32(8), and analogous corporate-officer provisions in other legislation, reinforced that construction. The court rejected the prosecution’s submission that article 32(8) created a separate offence.

4. The article 33 due-diligence ground failed. Once a jury was sure that the company’s offence resulted from the appellant’s consent, connivance or neglect, it could not consistently find that he had proved that he took all reasonable precautions and exercised all due diligence. The judge’s failure to leave that defence separately to the jury did not make the convictions unsafe. The complaint about the summing-up also lacked merit.

5. The indictment was defective but not a nullity. Its particulars accurately identified the company’s substantive offences and alleged that their commission resulted from the appellant’s consent, connivance or neglect. The defect was one of mis-labelling, not an attempt to prosecute conduct which was not criminal or an abolished offence. Applying the safety test in section 2 of the Criminal Appeal Act 1968, the court considered the indictment as a whole. The error caused no prejudice or unfairness and had not even been identified before the appeal. Allowing the appeal would give undue weight to technicality.

• Court of Appeal (Criminal Division): dismissed Wilson’s appeal against six convictions and held that the defective indictment had not rendered the convictions unsafe.
• Blackfriars Crown Court: on 6 December 2011, HH Judge Richardson and a jury convicted Wilson of six counts arising from the company’s fire-safety offences. He received substantial fines with terms of imprisonment in default.