London Borough of Southwark, R (on the application of) v London Fire and Emergency Planning Authority & Anor

Factual and Procedural Background

On July 3, 2009, a serious fire occurred at a 14-storey residential tower block owned by the local borough council ("The Borough"). The fire resulted in six fatalities and numerous injuries, with residents evacuated and re-housed. Subsequent investigations identified concerns about the building's condition before the fire and the response by the Fire Brigade, overseen by the Fire Authority.

Investigations were conducted by the Metropolitan Police Service ("MPS"), the Health and Safety Executive ("HSE"), and the Fire Authority. A jury inquest was also held. This judicial review concerns a challenge by The Borough to the Fire Authority's decision to retain responsibility for investigating and potentially prosecuting The Borough under the Regulatory Reform (Fire Safety) Order 2005 ("RRO"). The Borough contends that the Fire Authority is conflicted due to its operational relationship with the Brigade and that enforcement responsibility should be transferred to the HSE.

The litigation does not concern the substantive responsibility for the fire or impact ongoing damages claims, which have been resolved.

Legal Issues Presented

1. Whether the Fire Authority's decision to retain responsibility for the investigation and potential prosecution under the RRO gives rise to a real possibility of apparent bias or conflict of interest.
2. Whether the Fire Authority should lawfully transfer enforcement responsibility to the HSE pursuant to Article 26(3) of the RRO.
3. Whether the Fire Authority can lawfully conduct any prosecution under the RRO in these circumstances.

Arguments of the Parties

Appellant's Arguments (The Borough)

• The Fire Authority is conflicted due to its dual role as the operational body responsible for fire-fighting and as the enforcing authority under the RRO.
• The Fire Authority’s prior involvement in training The Borough’s staff and preparation of fire risk assessment documentation compromises impartiality.
• The Fire Authority’s public comments and involvement in investigations create a perception of bias.
• The decision to prosecute by the Fire Authority would be an abuse of power and tainted by immaterial considerations.

Respondent's Arguments (Fire Authority)

• No real possibility of apparent bias exists because the decision-making process is structured to ensure fairness and impartiality.
• The Fire Authority’s enforcement, operational, and legal functions are institutionally separate.
• The investigation has been conducted jointly with the MPS and HSE, with regular reviews of any potential conflict.
• The decision to prosecute would be taken with independent legal advice and adherence to the Code for Crown Prosecutors.
• The challenge is premature, as no final decision to prosecute has yet been made.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the statutory framework governing fire safety enforcement, the roles and responsibilities of the Fire Authority, and the specific facts relating to the Lakanal House fire and subsequent investigations.

The Fire Authority’s tripartite role—promotion of fire safety, fire-fighting, and enforcement—was recognized, with structural separations within the Authority designed to prevent conflicts.

The court noted that the prosecution would be based solely on the condition of the premises prior to the fire, independent of the Fire Authority’s firefighting role on the day.

It was emphasized that the Fire Authority’s investigation was conducted largely in conjunction with the police and HSE, with ongoing reviews of potential conflicts, none of which identified a real possibility of bias.

The court accepted that the Fire Authority’s legal decision-making was carried out by separate legal officers, supported by independent counsel, ensuring impartiality.

Applying the objective "real possibility of bias" test from Magill v Porter and Harb, the court concluded that a fair minded and informed observer, fully apprised of the facts, would not perceive a real possibility of bias in the Fire Authority’s retention of enforcement responsibility or in any potential prosecution.

The court rejected the argument that the Fire Authority’s prior involvement in training or procedural advice to The Borough compromised impartiality, noting that The Borough’s statutory duties were non-delegable and the course provided did not confer competence or warranty.

It was further reasoned that any prosecution would be subject to judicial oversight ensuring fairness.

The court found no basis to require transfer of enforcement responsibility to the HSE under Article 26(3) of the RRO.

Holding and Implications

The court DISMISSED the application for judicial review brought by The Borough.

The direct effect of this decision is that the Fire Authority may retain responsibility for investigating and potentially prosecuting The Borough under the RRO in relation to the Lakanal House fire. No transfer of enforcement responsibility to the HSE is warranted on the facts.

No new legal precedent was established; the ruling reinforces the application of established principles on apparent bias and the statutory enforcement framework for fire safety.