FireNet Community
THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: nunu on August 14, 2009, 03:53:16 PM
-
Advice sought under RRO.
I issued an enforcement notice on a B&B. Four storey property. Single staircase, open plan at base of staircase from the kitchen. No fire doors or self closers on any room opening onto the staircase. Interlinked smoke detection on each change of level landing only. At the time the B&B did not have any guests. The owner wrote to me stating that he would not have any guests until the work was complete. To get to my question.....The owner has declared that this property is now solely a private residence. I have therefore withdrawn the enforcement notice. What steps would members take if they now believed that the property was being offered for paying sleeping accommodation?
Many thanks
Nunu
-
If evidence can be supplied to support it then I would go straight down the prosecution route looking at both issues of;
a) People being put at risk by a failure to comply with the RRO
b) Giving false information
-
Thank you for your reply. This forum contains some fantastic debates, and is a great help in the world that is Fire Safety. If I could just trouble you for a couple more answers/views I would be very grateful.
In order to obtain the evidence that guests are indeed staying there I would need to sit outside. Does the RRO allow for such surveillance/questions? Can I question these guests to ask if they are paying for the privilege ? Would I need name and address of said guests? Would they be required to attend court etc?
In anticipation, and raring to go....
-
The RIPA Regs applies to an survellance being conducted by a Local Authority. This will almost certainly require an impact assessment to be conducted and would probably need to be authorised by a fire service senior officer, or even your County solicitor (depending on your policies and procedures).
Any survellance without the necessary assessments would be unlawful and leave any local authority open to prosecution itself.
-
Purely on another track, and I am not sure about the legal side, surely if the premises is being run as a B&B it will be subject to business rated council tax. If it reverts to domestic rates then it should be a domestic premise, if not it is still a comercial premise. If the first happens then the place is operating illegally and treasurers dept will be taking an interest. If the second applies then the enforcement notice must still stand.
I could be barking up the wrong tree but it could be worth lookng at.
-
Thank you again for the help and advice. I will carry this one upwards, and see what the decision is.
-
S Hood is spot on regarding RIPA. To sit outside watching would be classed as 'directed surveillance' and it certainly would require permission. However, to turn up at any reasonable time and enter the premises is covered nicely under the RRO. Even if it turns out to be a domestic premises once you have entered, there is nothing in the RRFSO that says you cannot enter to see if the RRFSO applies or is being complied with.
There is nothing stopping you interviewing guests, it is unlikely that they would be required to attend court as a written statement could be taken/requested instead. Even a written record of a conversation between you and a guest, if written down properly in your own notebook, could be acceptable. If the 'guests' won't assist you then you can't do much about it, but if they 'assist' but knowingly lie to you (to any questions pertaining to the fire safety order) then they are committing an offence. (Albeit one that we are unlikely to take any action over)
If it is not being used as a domestic dwelling then I would get a prohibition/restriction notice on the upper floors until the issues are sorted out. (It might be reasonable to allow the ground or even the first floor to remain in use)
-
Thank you yet again. I have a meeting arranged with the prosecutions manager. The idea would be to gain authorisation for RIPA, (however, I do like the reasonable time for the RRO) conduct enquiries, collate the info, prohibit the top floors whilst starting the case for the prosecution.
-
It would be useful if you could update us via this forum with how matters progress and your experiences.
-
I'd be happy to post with any developments. I don't imagine it'll play like a fast action blockbuster movie though. However, should I think you'll need popcorn and drinks, I'll warn you first! As regards RIPA, I think that may be riddled with problems. Specific training would be required etc. I'm not aware of FRS providing any such RIPA training. Imagine the cross examination on that! I think the route should follow RRO. To work in partnership with Trading Standards may be a good idea. Perhaps even fraud for financial gain. Thanks again.
-
Any good prosecution course should cover RIPA.... code B of PACE is also probably relevant here. In my experience many brigades do not provide their inspectors with the appropriate tools to do the job.
-
I have previously been involved in the survellance of a licensed premises in which my old brigade recieved information that the licensee was exceeding maximum occupancy figures, despite a prohibition notice being inforce restricting numbers due to fire safety concerns. Four of us sat in cars and buildings counting persons in and out (great way to spend a Friday night). The plan was that once numbers had been exceeded we would "Move in" !. On this particular evening he did not exceed his permitted occupancy numbers.
The application of RIPA, including obtaining the necessary authorities, was dealt with by our County Solicitor.
-
There's no need to involve your county solicitors....there needs to be an authorising officer and enforcers need to know what type of surveilance is permitted.
-
In my old little rural brigade the authorising officer for the fire service was the county solicitor. Every thing had to go through him, including any intention to prosecute. Guess this arrangement may be specific for the smaller brigades.
I guess they probably do things different down the smoke !
-
FRS can only authorise directed surveillance, and the use of covert human intelligence sources.
Directed means that it is for a specific purpose not just hiding in a bush hoping you might spot a crime.
They cannot use devices other than human devices e.g. you can’t bug the phone to try and catch them taking bookings.
The surveillance can be covert but not intrusive, intrusive means taking place on any residential premises or in any private vehicle.
All activities must be authorised.
Circular No. 50/2004 , issued 22 November 2004 advised that the authorising officer must be of either Divisional Officer 2 or Principal Fire Control Officer or above. Obviously this guidance is a bit out of date regarding brigade titles.
Where a request for surveillance is requested authorising officers must be satisfied as regards each request that an adequate case can be made for the particular activity sought.
The Authorising Officer must also be satisfied that the risks of outside interference have been properly considered.
Outside interferece is where a third party’s privacy will be interfered with by the proposed surveillance activity. For example, where an officer takes photographs, or observes one or more innocent parties.
-
Thats useful information. The survellance that I was involved with as a station officer consisted of four of us (2 pairs) observing a premises to obtain evidence that the premises was being occupied by an excessive number of persons, which would have been in breach of an existing prohibition notice. Two of us were watching from a car parked at the side of the premises, the other two were watching from a premises opposite.
I know that my Divisional Officer found RIPA a mine field. I believe this was the my brigades first application of the RIPA regs.
In the end he did not exceed his maximum permitted occupancy. We suspected that he was tipped off by the occupiers of the premises opposite which was being used for survellance.
-
Latest update. As it turns out, it appears that my private residence is now fully booked for the summer! I shall keep you posted.
-
Just to add something else, I do believe that the surveillance has to be directed at a person for RIPA to apply. However, in the example of watching a number people enter a hotel or a nightclub, although you are not spying on them personally, you are still potentially invading their right to privacy, and as such this 'collateral intrusion' aspect has to be considered.
-
Latest update. As it turns out, it appears that my private residence is now fully booked for the summer! I shall keep you posted.
I would say that it may be worth issuing a prohibtion notice prohibiting the use as sleeping accomodation. If they then use it as a b&b the offence is straight forward i.e. contravening a prohibition notice, there would be no need to prove that persons had been placed at risk.
If it is being used as a house occupied as a single private dwelling that notice would have no effect as the order does not apply.
The notice could come into effect at a later date, i.e. when you believe the premises are due to be used as a b&b.
-
Just to add something else, I do believe that the surveillance has to be directed at a person for RIPA to apply.
Not necessarily Civvy surveillance is directed if it is undertaken for the purposes of a specific investigation or a specific operation.
That does not have to be directed at a person…it could for example be an organisation.
-
Latest update. As it turns out, it appears that my private residence is now fully booked for the summer! I shall keep you posted.
I would say that it may be worth issuing a prohibtion notice prohibiting the use as sleeping accomodation. If they then use it as a b&b the offence is straight forward i.e. contravening a prohibition notice, there would be no need to prove that persons had been placed at risk.
If it is being used as a house occupied as a single private dwelling that notice would have no effect as the order does not apply.
The notice could come into effect at a later date, i.e. when you believe the premises are due to be used as a b&b.
I think PhilB's suggestion is spot on. Furthermore failing to comply with a prohibition notice is a much more serious offence.
-
Not necessarily Civvy surveillance is directed if it is undertaken for the purposes of a specific investigation or a specific operation.
That does not have to be directed at a person…it could for example be an organisation.
From my notes from an accredited course delivered by Bond Solon... "Note, RIPA does not regulate the surveillance of place or premises per se. There has to be a human subject for the surveillance for RIPA to apply."
From RIPA explanatory notes... "Directed surveillance" is defined in subsection (2) as covert surveillance that is undertaken in relation to a specific investigation or a specific operation which is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);"
"By subsection (9), surveillance will be covert where it is carried out in a manner calculated to ensure that the person or persons subject to the surveillance are unaware that it is or may be taking place."
I think the key there being 'person or persons subject to surveillance'. If it is not covert then it is not, by definition, directed surveillance.
If you can point me towards something that might change my mind then feel free.
-
I think PhilB's suggestion is spot on. Furthermore failing to comply with a prohibition notice is a much more serious offence.
The problem there being that if it is a house the occupier could easily challenge the notice, ensuring that between the time he appeals the notice and the time the appeal is heard, that he keeps everything above board (To avoid the FRS getting any evidence to prove otherwise) The hidden beauty of this is that it is forcing his hand to go in front of a Magistrate and lie. If a prohibition is cancelled, and then the owner is proved to have lied to a Magistrate, I can't see the next Magistrate being so accommodating when he is up for other offences.
-
OK Civvy for the sake of arguement, if you have the premises under surveillance and you are counting the number of people who enter in the evening and leave in the morning with suitcases, but you are not following the owner or the people then the RIPA does not apply. Am I correct?
-
The information I have at present would lead me to believe that is correct. I am no legal expert, just operating on what I have in front of me that is supplied by ex-police and barristers who ARE classed as legal experts.
It is a fine line, you could say that to be on the safe side of a 'human rights act defense' you should use RIPA if there is the slightest doubt regarding an invasion of privacy, but then again with all the media interest in RIPA you might be better avoiding it where possible, taking into account that the owner cannot claim an invasion of someone elses privacy as his defense.. There you are, I have quite successfully sat firmly on the fence!
-
Latest update. As it turns out, it appears that my private residence is now fully booked for the summer! I shall keep you posted.
If it fully booked for the summer it must be advertising somewhere. If it is advertising the owner is then confirming it to be a B&B or guest house.
No need for surveillance.
-
Not necessarily Civvy surveillance is directed if it is undertaken for the purposes of a specific investigation or a specific operation.
That does not have to be directed at a person…it could for example be an organisation.
From my notes from an accredited course delivered by Bond Solon... "Note, RIPA does not regulate the surveillance of place or premises per se. There has to be a human subject for the surveillance for RIPA to apply."
From RIPA explanatory notes... "Directed surveillance" is defined in subsection (2) as covert surveillance that is undertaken in relation to a specific investigation or a specific operation which is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);"
"By subsection (9), surveillance will be covert where it is carried out in a manner calculated to ensure that the person or persons subject to the surveillance are unaware that it is or may be taking place."
I think the key there being 'person or persons subject to surveillance'. If it is not covert then it is not, by definition, directed surveillance.
If you can point me towards something that might change my mind then feel free.
All I will say Civvy is be careful believing all you are told by the various training providers out there...I have also attended courses run by certain organisations and a lot of what I heard was incorrect....in my humble opinion of course....... and the opinion of other persons much cleverer than me...and even cleverer than Todddy ;)
-
Surely nobody is more cleverer than CT? Just like noone can speak the proper english as gooder as what I does.