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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: kurnal on January 14, 2011, 03:40:49 PM
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Under PACE and Fire Authority procedures I am aware that defendant has to be cautioned as soon as the investigating officer has reason to believe an offence may have been committed.
However how far is it reasonable for an investigation into an alleged offence by an individual to proceed including other potential witnesses being interviewed without informing the accused of the ongoing investigation? At what stage should the defendant be advised of the investigation ongoing? Is it right that they should be the last person to know? Or is there no guidance on this?
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Prof
Surely he isn't a defendant until the FRS have identified from their investigation that he should become one ???
davo
ps PACE guides were on the DCLG website last time I looked
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But if someone is suspected of an offence is it right that they could be the last person to be aware of the investigation ongoing? It could be unforunate if i were to tell you in the pub that I had been interviewed as a witness over an offence you were alleged to have committed and you knew nothing about it?
If I commit a driving offence like speeding the Police have to serve me a notice of intended prosecution within 14 days of the alleged offence. Is the RRO different?
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K, I believe this will be included on a course which CT runs! (Not the police or speeding - which I am sure he will also have an opinion on)
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Kurnal
The NIP is a specific thing to the Road Traffic Offenders Act and is not something relating to PACE.
Another way to look at it is that once we THINK that an offence has been committed, we are then simply gathering evidence in order to make a better judgement. In this 'evidence gathering' stage why would we need to inform anyone? Do the police inform drug dealers that they are being investigated?
This is a bit of an extreme example and a completely different type of investigation. I personally believe that we should be up front and open about it all from the onset of suspicion. One of the first things we need is the risk assessment, and since we are probably taking copies of it I think that it should be made clear why we want a copy.
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The serving of the code B notice as required under pace will inform the RP or their representative that evidence is being gathered as result of a suspicion that an offence has been committed.
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Yes agreed CivvyFSO
Once the commission of an offence is suspected evidence needs to be gathered to prove it,and actually it may well be that subsequent investigations exonerate the person originall suspected of committing the offence.
So there isn't any point putting some through the stress of being investigated when it may be unfounded, or turn out to be nothing.
A bit tenuous but be aware just as a point of order that it is a myth that the police have 14 days to nab you for speeding.
It all depends on the offence. If they are going to nab you with a fixed penalty fine and penalty points they have 14 days in which to do.
But if you speed well in excess of the speed limit which might result in a driving ban or prison sentence, they have up to 6 months to investigate the offence.
This links into what we are saying about the RR(FS)O - serious criminal offences are granted longer periods to be investigated. This is one of the main differences between summary and indictable offences.
Also bear in mind that there are a minority of people whom if they know they are being investigated, may try to conceal or tamper with evidence.
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The serving of the code B notice as required under pace will inform the RP or their representative that evidence is being gathered as result of a suspicion that an offence has been committed.
We are not seizing someones property, why would we need a code B notice?
I am aware that many FRS's do this, and I think that it is us getting ideas above our 'station'. We are not 'searching' a premises for evidence, and we are not removing any actual property unless we take a sample of something for testing, in which case you could then be required to issue a code B notice.
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We don't have to take anything. Just the act of making further enquiries requires it to be served.
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We don't have to take anything. Just the act of making further enquiries requires it to be served.
Whilst I am happy to be corrected our B Notice quotes -
Our powers under Article 27, space for the address, person receiving the notice, business role, inspectors signature, inspectors name, time, date and items taken.
My training taught me that it is issued only if taking items away including taking photographs.
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Check out http://www.homeoffice.gov.uk/police/powers/pace-codes/ part B I guess originates from there.
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B Notice? explain!!!!
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Cleveland
Some FRS's issue a code B notice under PACE when gathering evidence. It is what the police have to issue before they search your house/vehicle and take anything of your own property away from you. (Or indeed stuff that is potentially not your property, stolen goods etc) It is my opinion that our powers revolve around taking copies and samples, not property, therefore we do not need to issue a Code B notice. Even when it comes to taking a sample of something to ascertain its flammability, it is not like they are going to get it back undamaged so they will not really have any claim to it.
There is a mention of taking copies in Code B and this cites the Criminal Justice and Police Act. Within part 2 of the CJPA it states that taking copies of things is the same as seizing them so far as the CJPA applies, but it lists various articles and sections of legislation where the powers conferred would come under part 2 of the CJPA, and the RRFSO is not on that list.
FWIW, I am not arguing this from the point of "I am right". I think that it is a good topic for discussion and want to take other people's opinions.
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Check out http://www.legislation.gov.uk/ukpga/2001/16/contents to follow the thread. Another one that may be relevant http://www.legislation.gov.uk/ukpga/1996/25/contents.
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Cleveland
Some FRS's issue a code B notice under PACE when gathering evidence.
I hope that all FRS issue them. It is my understanding that without it the court may have to make a judgment on the validity of the evidence.
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In my opinion as soon as it is suspected that an offence has been committed the notice should be served.
During the audit the role of the auditor is to gather information. When an offence is suspected to have been committed (of course taking into account the seriousness of the risk to life) that role is then one of gathering (searching for) evidence, even though we are carrying out the same physical actions and visual observations our intentions have changed.
We don't need to open drawers or cupboards to carry out our search nor do we have to be taking anything from the premises.
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FWIW, after doing quite a bit of digging I am leaning towards the need for a Code B notice.
"Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code."
The argument would be whether part B of the code is a relevant requirement, considering
"This Code of Practice deals with police powers to:
• search premises
• seize and retain property found on premises and persons"
This looks as though it is intended to deal with the police powers conferred by PACE, and various other acts, Traffic Act etc.
However.....
"This Code does not apply to the exercise of a statutory power to enter premises or to
inspect goods, equipment or procedures if the exercise of that power is not dependent
on the existence of grounds for suspecting that an offence may have been committed
and the person exercising the power has no reasonable grounds for such suspicion."
It is this final line that would be hard to defend against in court if someone was questioning the way the evidence was collected. You would have to have a good answer to prove that Code B was not relevant.
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The argument would be whether part B of the code is a relevant requirement, considering
"This Code of Practice deals with police powers to:
• search premises
• seize and retain property found on premises and persons"
Two words there ... search and sieze.
As investigating officers, you do not search premises neither do you sieze goods/articles/items. You inspect and gather evidence using photographs (hopefully) but shoud have regard to the code in case of procedural challenge. You powers of entry and inspection are under Article 27 of the order .... unless you think you have the authority to actively look for offences.
I have argued successfully to persons more senior and experienced than myself that a code B notice was not needed during an investigation and indeed, at all. Service procedures can be used to record this fact and state the reasons why (back to procedural challenge)
With regard to cautioning, I would say that timing is everything.
If you caution a 'suspect' because you have reason to believe an offence has been committed, you will be doing alot of writing. Following the caution, every question you ask and the answers the suspect givesmust be recorded verbatim. Ask one question and that constitutes an interview .... dodgy if not done under caution and things will become complicated!
Why caution at the time? Remember that the RR(FS)O is criminal law, therfore the prosecution must prove beyond reasonable doubt that the offence has been committed and present the evidence accordingly.
If you are investigating and gathering evidence, you don't need to caution so can ask questions in relation to fact finding as long as this is recorded in your notebook. When you have done, get the person to sign as a true record of events at the time. If you proceed, then this is admissable evidence in court.
If you do caution, it is your responsibility to ensure that the person fully understands the caution. Miss this point and their brief may get you on a technicality and abuse of procedure!!
You only need to caution if the person makes a significant statement which is an admission of the offence or you want to halt an inspection due to obvious evidence and you need to conduct a proper interview at a suitable location, conducted in a proper manner ... recorded and with representation.
It is best to only caution at the interview stage and when you have evidence to put before the person which you seek answers to.
It's a potential minefield which needs to be trodden carefully, not that I have any experience!!
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I am sitting quite firmly on the fence here, so forgive me if I argue both sides.
Code B makes a distinct differentiation between entry under statutory powers when someone is not aware of an offence, and a visit where someone has reasonable grounds to suspect an offence. The only argument that we have to say that no code B notice is required is to prove that Code B is not a relevant part to our role. It does seem to be worded in such a way as to be very relevant to the Police, but it also seems to apply to other enforcement authorities although this seems to be the authorities who will seize items. (trading standards etc)
Regards cautioning a suspect, I operate on the principle whereby I will continue with an audit, almost turning a blind eye to any potential offence, and treat it as an information gathering exercise. After the audit you then have the whole picture, and can then make a judgement as to whether there are reasonable grounds to suspect an offence. Anything that is said during the audit is not used as evidence, but I will potentially use those replies to formulate questions at a taped interview under caution. (Putting significant statements to the interviewee at the start of the interview)
FWIW, you don't have to write everything verbatim according to PACE. You can record an account of an interview which adequately and accurately summarises it.