Martyn’s Law

Manchester Arena Public Inquiry – what next?

The independent public inquiry into the terrorist attack at the Manchester Arena on 22 May 2017 formally concluded on 07 June 2023, following the final hearings on the Volume Two and Volume Three Monitored Recommendations. The Chairman, Sir John Saunders, heard from Deputy Chief Constable of Greater Manchester Police (GMP), Terry Woods, about how the force will be “far better prepared” for any future terror attack and that the attack in 2017 which killed 22 people would forever be “in the DNA of GMP”. However, the news was not all positive, with the Chairman also being told that whilst there had been moves towards more training nationally, it was Mr Woods’ assessment that forces in other parts of the country should be doing more. The director of operations for North West Ambulance Service also told the hearings that plans to involve non-specialist ambulance personnel in multi- agency training exercises was not something that could be delivered in the immediate future and was likely to take years. A training exercise last November also identified a number of failings by North West Fire Control, including similarities to what had gone wrong on the night of the bombing, although reassurances were given that the issues had since been addressed. Concerns were also raised around the lack of regulation for the provision of emergency healthcare at public venues. The Chairman heard how the Care Quality Commission (CQC) has been calling for the powers to regulate such provisions since 2019 but the Department for Health and Social Care feels that further work should be undertaken to establish if more regulation is needed. The recent hearings came on the back of the draft Terrorism (Protection of Premises) Bill which was published on 02 May 2023 which is now subject to pre-legislative scrutiny by the Home Affairs Select Committee. The Bill has come about thanks to dedicated campaigning by victims’ families, spear-headed by Figen Murray, whose efforts have been acknowledged given that the legislation will be known as Martyn’s Law in tribute to her son Martyn Hett who was killed in the bombing. Although the ongoing issues identified during the most recent hearings serve as a reminder of how much work is still to be done in addressing the UK’s preparedness for a terrorist attack, they should also give the Government and all other agencies, authorities and indeed businesses the impetus to effect change sooner rather than later.

What is Martyn’s Law?

Before issuing the draft legislation, the Government engaged in an extensive public and stakeholder consultation process and to that end much of the content of the draft bill comes as no surprise. The primary objective of the legislation is to reduce the risks we face from terrorism. The Government are keen to stress, however, that the approach to doing so must be proportionate so as not to over-burden those falling within the scope of the legislation, in terms of obligations and the associated costs, as well as, the general public who must be protected but also allowed to get on with their lives free from fear and oppression.

Scope

The draft bill defines which public premises and events will fall within the scope of the legislation as follows:

• “… “qualifying public premises” means premises in respect of which the following conditions are met—

(a) the premises are primarily used for a use or uses specified in Schedule 1. (b) the public, or a section of the public, has access to the premises or a part of the premises. (c) the premises have a public capacity of 100 or more individuals….” ( s2(1)) Uses specified in Schedule 1 include shops; food and drink; nightclubs; entertainment activities; sports grounds; recreation, exercise or leisure; libraries, museums and galleries; exhibition halls; visitor attractions; hotels; places of worship; healthcare and education. It is acknowledged that qualifying premises may be contained within other premises, for example shopping centres; in those circumstances the legislation will apply to each of the qualifying premises, as well as, the larger premises.

• “… “qualifying public event” means an event in respect of which the

following conditions are met— (a) the event is to be held at premises which are not qualifying public premises; (b) the public or a section of the public will have access to the premises, or a part of the premises, for the purpose of attending the event; (c) the premises have a public capacity of 800 or more individuals.” The draft legislation also defines responsible persons as follows: 5(1) ….  (a) “person responsible for qualifying public premises” is the person who has control of the premises in connection with their relevant Schedule 1 use; (b) “person responsible for qualifying public event is the person who has control of the premises at which the event is to be held in connection with their use for the event. Similar to the point about premises within premises, the bill acknowledges that there may be more than 1 person responsible for qualifying premises or events and in such cases any obligations under the Act shall apply to all persons responsible (s5(2), c/f s18).

Two Tiered Approach

As expected, a “one size fits all” approach is not considered appropriate. The bill has, therefore, been drafted with the intention that Martyn’s Law will adopt a two-tiered approach consisting of a standard and an enhanced tier. Section 3 of the draft bill defines the criteria. Standard tier will apply to qualifying locations with a maximum capacity of over 100 and will require the duty holders to undertake simple but effective activities to improve their protective security and preparedness. Such measures will include:

• ensuring that a standard terrorism evaluation of the premises is carried out and reviewed annually and when there is any material change to the premises or the use of them (s11)
• providing “relevant workers” with not only initial but also annual terrorism protection training. The training must be appropriate, taking account of the size and character of the premises, the nature of any qualifying public event and the responsibilities of the relevant worker(s) (s13)

An enhanced tier will apply to locations with a capacity of 800+ people at any time; this is likely to include live music venues, theatres and department stores. It is acknowledged that if such locations were targeted in a terror attack, there would be potentially much more serious consequences given their increased capacity, therefore these locations will have more onerous, but proportionate, obligations placed upon them. The requirements will include:

• ensuring that an enhanced terrorism risk assessment of the premises is carried out and reviewed at least annually and also when there is any material change to the premises or their use (s12)
• providing appropriate terrorism protection training for “relevant workers” (s13)
• ensuring that reasonably practicable measures are in place to reduce the risk of acts of terrorism occurring at or in the immediate vicinity of the premises or event and reducing the risk of physical harm to people if acts of terrorism were to occur (s15)
• appointment of a designated senior officer whose responsibilities will include co-ordinating the risk assessment of the premises or event; co-ordinating the preparation and maintenance of the security plan and co-ordinating the response to any notice or other communication from the regulator in relation to the premises or event (s16)

Qualifying public events, with a capacity of 800+ will generally be subject to the same requirements as enhanced tier premises (s4)

Costs

The Government have published the Home Office Impact Assessment along with the draft legislation and it estimates that the implementation costs for those falling within the standard tier will be in the region of £2,100, whilst the costs for those required to comply with the enhanced obligations is likely to exceed £80,000. Whilst such figures may cause some concern at first glance, it is important to note that the Government have sought to engage with the public and stakeholders throughout and continue to do so to ensure that the measures introduced are not so onerous as to leave businesses burdened with debts or even unviable. Much like the requirements under health and safety legislation, there is reference to things being done to a reasonably practicable standard, which is an important qualification as it will allow duty holders to balance the risk reduction against the time, money and effort required to achieve the goal.

Implementation

As alluded to above, the draft bill has the hallmarks of well-established legislation and regulations in the fields of health and safety, fire safety etc. To that end, it will establish a regime requiring registration and inspection, coupled with sanctions for those who fail to comply. The draft legislation identifies key functions that must be undertaken by the person responsible for the qualifying premises/event, that being the person who has control of the premises in connection with the Schedule 1 use. The responsible person(s) will need to ensure that terrorism evaluations and risk assessments are conducted and appropriate training provided. They will also have to ensure that premises are registered with the regulator (s9) and qualifying events notified (s10). Those responsible for premises falling within the enhanced regime must also ensure that an individual is appointed to act as the designated senior officer. The regulator must be informed of the details of the individual and any changes, as soon as reasonably practicable. Where the responsible person is an organisation, the designated senior officer for the premises or event must be a director, manager, secretary or other similar officer (s16). The legislation will also require co-operation and co-ordination where there is more than one responsible person, as well as co-operation with those responsible for fire safety. Whilst we do not yet know who the regulator will be, the draft bill gives the distinct impression that there will be pro-active inspections and although the Government have stressed that the focus will be on education and guidance, the draft legislation does still set out the possible consequences for non-compliance. Powers available to the regulator will include:

• Issuing contravention notices where there are reasonable grounds to believe that a person is contravening or has contravened a relevant requirement. Such a notice may require specific action to be taken within a specified period and to provide evidence of compliance (s22)
• Serving restriction notices requiring specific steps to be taken to ensure the use of the specified premises is restricted in set ways, for example the purposes for which they may be used or the times at which they can and cannot be used (s23)
• Penalty notices- fixed penalties may be issued, if the regulator is satisfied, to the civil standard, that a person is contravening or has contravened a relevant requirement. If the fixed penalty relates to standard duty premises the draft legislation proposes a maximum penalty of £10,000. If the premises/qualifying event falls within the enhanced tier, the maximum amount will be the greater of £18 million and 5% of the person’s qualifying worldwide revenue (s26-29)
• The power to require information and documents be provided and to enter premises (Schedule 2)

Offences

The draft legislation also includes a number of offences which we have set out below:

• Failure to comply with a contravention notice issued in respect of enhanced duty premises or a qualifying public event (s34{1)
• Failure to comply with a restriction notice (s34(2))
• Knowing or recklessly, providing false or misleading information to the regulator in compliance, or purported compliance, with a requirement under the Act ( s34(11))
• Offences by directors, partners etc – by way of consent, connivance, or neglect (s35)

The offences will carry a financial penalty and/or a term of imprisonment which on indictment could be up to 2 years.

Preparation

Although we do not know when the legislation will come into force, the fact is that it will, therefore it would be wise for those who will be affected to act now. Doing so will afford those involved a greater degree of control over timetabling and costs; not only that but it is also likely to give staff, patrons and visitors to premises increased confidence to attend time and again, safe in the knowledge that the operator is taking responsibility for keeping them safe from the ever present and evolving terrorist threats, without compulsion. Clearly it will take time and a lot of effort to embed Martyn’s Law into our daily lives but the fact is that doing nothing is simply not an option. At Olliers, we can provide specialist legal advice and assistance to you and your business. We can speak to senior management teams and staff regarding the incoming legislation and the impact it will have. We also have positive working relationships with commercial lawyers who can assist with venue/event agreements and contracts, as well as, specialist PR consultants to assist with responding to media contact and publishing content around the response to the legislation where necessary. As can be seen with our approach to pre-charge engagement in criminal matters, Olliers take a proactive approach to all that we do and our many years’ experience in the criminal and regulatory sector, including representing 2 of the Core Participants in the Manchester Arena Inquiry, means we are perfectly placed to help those who will fall within the scope of the legislation, before, during and after it has been introduced.