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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: kurnal on October 03, 2011, 04:17:04 PM
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The Fire Safety Order article 32 details offences.
But if for example a hotel guest wishes to cover up their ilegal smoking in their room, removes the smoke detector and disconnects the wires in the base completely disabling that zone of the fire alarm its a matter for police enforcement in respect of criminal damage, rather than an offence under the Fire Safety Order.
Am I correct?
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The Fire Safety Order article 32 details offences.
But if for example a hotel guest wishes to cover up their ilegal smoking in their room, removes the smoke detector and disconnects the wires in the base completely disabling that zone of the fire alarm its a matter for police enforcement in respect of criminal damage, rather than an offence under the Fire Safety Order.
Am I correct?
K. If you remove a removable bit and disconnect a disconnectable bit has criminal damage been done? Has the system not been rendered inoperable rather than damaged?
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Can potentially be either would come down to the technicalities.
But as a general rule where two or more pieces of legislation can be used to address a given act or ommitance it falls to the legislation / offence which carries the most penalty, and which is most suitable.
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Thanks and good point NT.
Putting it another way section 8 of the H&SAWA makes it an offence for anyone to misuse or interfere with anything provided to meet H&S interests. But there appears to me to be no similar provision in the Fire Safety Order.
The fire alarm example occurred for real over the weekend and it seems to me that the FSO does not provide anything other than the most tenuous and insecure route via article 5(3) to take action against the perpetrator. I hope someone can prove me wrong.Please.
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Could the guest be prosecuted via the 32(10) route of the offences?
(10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
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A gold star goes to Indiana. They most certainly could be prosecuted under 32(10).
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Yes indeedy however the 32(10) offence would probably only be considered if it could be proven that someone was put at serious risk of injury or death
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Yes, but it wouldn't take much to show that someone overriding the detection within a hotel bedroom is putting people at risk.
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Possibly, but not necessarily, would depend on size / layout of the hotel.
Sorry Civvy I promise Im not being pedantic, but going back to the original question criminal damage may be for instance "easier" to prove and cop the irresponsible guest with than trying to use the RR(FS)O.
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Thanks to all but I am not convinced by the 32(10) approach.
(10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
So as I read 32(10) to charge the guest under this article we would have to first take the view that an offence had been committed by the RP but that this was due to the act of the guest.
The RP in this case certainly has not committed an offence and has been totally diligent throughout. But now wants action taken against the irresponsible rogue who caused the problem.
I accept I may be misinterpreting the article but thats how it reads to me.
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So as I read 32(10) to charge the guest under this article we would have to first take the view that an offence had been committed by the RP but that this was due to the act of the guest.
The RP in this case certainly has not committed an offence and has been totally diligent throughout. But now wants action taken against the irresponsible rogue who caused the problem.
Yes I can follow that. The key word is offence, not failing, which is the basis of my reply to Civvy. For a 32(10) offence to stick then really I would probably say a fire would need to have occured where people were put at serious risk of injury or death. A single vandalised detector wouldn't constitute an offence.
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I still think that the 32(10) route would be more applicable than the 5(3) route - both would still need offences to have beem committed and so, if no offence could be proved, then neither Articles would apply.
If the removal of the detector, due to the features, layout and all that, did cause an offence (e.g compromised the means of escape for other guests) then a fire would not necessarily need to happen for an offence under 32(10) - just the potential for it to happen.
Just my thoughts..
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Kurnal, similar wording to 32(10) is used in many other acts and orders.
From: http://www.hse.gov.uk/enforce/enforcementguidesc/identifying/directors.htm
HSWA s8 and s36
Section 8 states that no person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions 9. This can obviously apply to employees or to non-employees, and is of potentially wide application. The provision is however seldom used as a basis for prosecution, and has generated little comment.
Section 36 is another wide section. Where the commission of an offence under the relevant statutory provisions 10 by any person is due to the act or default of some other person, that other person is also liable to be prosecuted for the offence, whether or not the principal is proceeded against.
s36(2) extends the same liability to acts or defaults by the Crown, where an offence would have been committed under s33 but for its immunity under s48.
An action under this section is not only possible against an employee, though it is seldom used in this way, but also against any other person even, for example, a trespasser. The ‘act’ referred to, will in practice, almost certainly need to be a ‘wrongful’ act.
So as mean as it sounds, the offence (if there is one) initially falls at the feet of the RP, but they would clearly not be proceeded against as they have the defence of due diligence so any prosecution would not be in the public interest due to the likelihood of a conviction being almost zero. This leaves an offence, but with someone else culpable.
(It seems that the HSE could potentially pursue it also under the HSAWA, unless the RRFSO rewrote areas of that section)
A fire does not have to have occurred to find an offence and there is case law which demonstrates this.
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When you stay at a Hotel (etc) you enter into a contract. So wilful damage of the premises, or its fixtures and fittings, could be considered a breach of said contract.
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I have never signed a contract nor agreed terms when booking into a hotel. I give them money they give me use of a room for a period. Any contractual liability on me not to damage it must be implied rather than explicit. And not worth the paper its not written on.
This event took out a zone of the fire alarm. The engineers were called immediately but the actual cause could not be found until the next day.
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Kurnal / Midland I agree with you both 32/10 will only be applicable if theres been a blaze.Civvy you seem to agree with this!!!!!!!!!!!!!!!!!!
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Why would 32(10) only be applicable if there has been a fire? There is nothing in article 32 which differentiates 32(10) from any of the other offences, in fact it clearly rides on the back of the other offences. (So to speak) It can be pinned on the person involved just as easy as any other prosecution of an RP where no fire has occurred.
http://www.info4fire.com/news-content/full/commercial-building-owners-fined-for-fire-safety-breaches <- No fire, seven offences
http://www.info4fire.com/news-content/full/nightclub-bosses-fined-for-fire-safety-breaches <- No fire, ten offences
You have a RP who has a duty to ensure that a suitable means of giving warning is supplied.
You have a hotel where a suitable means of giving warning is not supplied. (Or is supplied but is not in working order thus being more attributed to a failing under article 17, depends on how you want to look at it)
If this has the potential to cause death/serious injury and can be pinned down to a failing under an article of the RRFSO then there is a potential offence under article 32.
The actual RP has a good defence, so despite their direct responsiblity for compliance no action would be taken against him/her.
The person responsible for disconnecting the detector is quite clearly responsible for any offence caused, and article 32(10) allows us to take action against them. Subject to proving an offence of course, but that is not different to trying to prove any other offence that a RP may have committed directly as in the above links.
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I totally agree that the potential is enough for an offence to be committed. However it is unlikely if one detector head has been affected.
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In the actual case in point the fire alarm engineer was clear that the entire zone had been disabled by the disconnection.
The hotel owner immediately reported the fault as it showed on the panel and brought in the engineers but tracing it took some considerable time. During this time a zone of the hotel did not have adequate provision for detecting and raising the alarm of fire.
This clearly has the potential to place one or more relevant persons at risk of death or serious injury in case of fire.
The responsible person has a duty to equip the premises with appropriate fire detection and alarms. The responsible person has met this duty and, when a fault became apparent, took immediate steps to resolve the problem. It would be very harsh to investigate the responsible person with a view to an offence under the fire safety order with all of the stress disruption and potential harm to the reputation of the hotel that would arise as a result.
But unless the fire service can prove an offence has been committed they cannot apportion blame in accordance with article 32 (10).
Only the responsible person has a duty to provide the alarm system and so only the responsible person can fail to provide or maintain it. Therefore only the responsible person can be initially responsible for any offence and only the subsequent investigation will reveal the part played by others.
It would have been much better had we had the equivalent provision of section 8 of the health and safety at work act.
In this case, which is clearly crying out for prosecution of the responsible idiot who disconnected the fire alarm system, I have advised the responsible person not to involve the fire service for the reasons set out above.
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Thanks to all but I am not convinced by the 32(10) approach.
(10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
So as I read 32(10) to charge the guest under this article we would have to first take the view that an offence had been committed by the RP but that this was due to the act of the guest.
The RP in this case certainly has not committed an offence and has been totally diligent throughout. But now wants action taken against the irresponsible rogue who caused the problem.
I accept I may be misinterpreting the article but thats how it reads to me.
Does the RP have to be prosecuted or convicted to show that an offence has been committed and therefore for "others" to be prosecuted?
Would we expect the FRS to prosecute him in order to get a conviction so as to get at the real baddies? Would that be in the interests of natural justice?
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No NT, the Order clearly states that we can prosecute the individual involved regardless of whether action is taken against the RP. This is where the public interest test from the Code for Crown Prosecutors comes into effect, and since there would be no realistic prospect of conviction of the RP no action would be taken against the hotel owner. The owner/RP may be asked to give a statement, or asked to come in for an interview under pace, and while this could be seen as an initiation of action against the RP it would really be to show that they could not have helped what happened. Remember also that since it is the lives of the customers (as opposed to employees) that is being protected, then the RP has the defense of due diligence.
Where it could get awkward is if, despite knowing that the alarm system was not functioning correctly, the hotel owner allowed everything to go on as normal with no other measures in place.
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Civvy I am interested in how you think such an offence may be described. As you indicate in posting 16 there is no direct offence under the FSO such as "interfering with the fire alarm system".
I agree with you that the offence has got to be an indirect one- that the actions of the irresponsible idiot led to the RP failing to provide an adequate alarm and detection system.
Any idea what the words on the charge sheet might be?
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I would go for a failure to comply with article 17: (You could go for article 13, and state that since the detector was removed, the level of detection was not appropriate, but I will go for article 17 anyway)
Maintenance
17.—(1) Where necessary in order to safeguard the safety of relevant persons the responsible person must ensure that the premises and any facilities, equipment and devices provided in respect of the premises under this Order or, subject to paragraph (6), under any other enactment, including any enactment repealed or revoked by this Order, are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair.
The alarm system, at the point of disconnection of the detector, was clearly not in working order. Meaning that a fire within a room (which someone was smoking in) would not be picked up, (nor would a fire in that entire zone according to the statement of Mr Kurnal) therefore could be allowed to grow undetected in a building where people are sleeping.
32.—(1) It is an offence for any responsible person or any other person mentioned in article 5(3) to—
(a)fail to comply with any requirement or prohibition imposed by articles 8 to 22 and 38 (fire safety duties) where that failure places one or more relevant persons at risk of death or serious injury in case of fire;.
So I would state that we have a potential offence, as the failure to comply with Article 17(1) did put relevant persons at risk of death or serious injury in case of fire.
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I also think that the first time something like this is taken to court, the magistrates would ensure that an example is made of someone interfering with a safety system in such a way.
Now if the person gets a good defence, there are things that could be thrown in to complicate matters, that is for sure. But there are things that we won't know until we try.
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Thanks for your patience Civvy in explaining this, it really illustrates the fact that perhaps as I suggested in my first posting the fire safety order is probably not the best way to deal with this type of transgression.
Strikes me that it's rather like if I was to have an affair with Mrs angry, Mr angry might get rather cross and in order to seek revenge might hacksaw through my brake pipes.
I then get arrested for driving a car with defective brakes but not charged when it becomes apparent that it is a malicious act by a third party. But still have to spend the night in the cooler whilst all of this is sorted out. Mr angry would not be charged under the Road traffic act he would be more likely to be charged with attempted murder.
That's why I think my fire alarm case is really a job for the police rather than the fire service.
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I think that there could be scope for a larger fine under the RRFSO, as if it goes down the line of a CPS prosecution it would be compared to other acts of 'damage' and I would expect that this would lead to a minimal sentence or fine, but recent RRFSO prosecutions seem to pay no heed to comparable cases in other law.
I personally believe that this could be quite a simple case to progress under the RRFSO, especially so due to the whole zone being taken out. Even if the whole zone wasn't taken out therefore meaning that a minimum of L4 detection was still in place, you could potentially prosecute the person for putting themselves at risk. (as a relevant persons) Colin Todd might appear as expert witness explaining that the BS for fire alarms is not intended to protect persons in the room of origin though, just to muddy the waters a bit, but I am sure I could handle that argument. (Whether my FRS would let me try is a different matter completely)
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Thanks for your patience Civvy in explaining this, it really illustrates the fact that perhaps as I suggested in my first posting the fire safety order is probably not the best way to deal with this type of transgression.
Strikes me that it's rather like if I was to have an affair with Mrs angry, Mr angry might get rather cross and in order to seek revenge might hacksaw through my brake pipes.
I then get arrested for driving a car with defective brakes but not charged when it becomes apparent that it is a malicious act by a third party. But still have to spend the night in the cooler whilst all of this is sorted out. Mr angry would not be charged under the Road traffic act he would be more likely to be charged with attempted murder.
That's why I think my fire alarm case is really a job for the police rather than the fire service.
What would the charge be if you went down the police route K? What offence has your idiot committed under which legislation?
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I think that there could be scope for a larger fine under the RRFSO, as if it goes down the line of a CPS prosecution it would be compared to other acts of 'damage' and I would expect that this would lead to a minimal sentence or fine, but recent RRFSO prosecutions seem to pay no heed to comparable cases in other law.
Correct. Which harks back to my original posting that often the legislation carrying the highest penalty will be used. I cannot remember if criminal damage (in the context of this scenario) is a summary or either way offence.
I also agree with you Civvy that it would be fairly easy to take forward the prosecution using the RRO now that Kurnal has given us the full picture re affected zones etc. The way the RRO is structured in dealing with this problem may seem overly complex but in reality it isn't
However that all said if it were merely a detector that was damaged, but the zone /system was still functional a prosecution would be IMHO very unlikely.
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Criminal damage, and there is clear recklessness involved. There is knowledge of what the detector does, hence the reason for disconnecting it. They could deny knowledge that it would take an entire zone out, thus only thinking they would put themselves at risk.
The beauty of taking the RRFSO line is that any ignorance of the systems in place does not really add up to a defence. It might be offfered in mitigation upon a guilty plea, but it cannot really be used to defend a not-guilty stance. (I think, one of the more legally minded people here may correct this)
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I think that there could be scope for a larger fine under the RRFSO, as if it goes down the line of a CPS prosecution it would be compared to other acts of 'damage' and I would expect that this would lead to a minimal sentence or fine, but recent RRFSO prosecutions seem to pay no heed to comparable cases in other law.
Correct. Which harks back to my original posting that often the legislation carrying the highest penalty will be used. I cannot remember if criminal damage (in the context of this scenario) is a summary or either way offence.
I also agree with you Civvy that it would be fairly easy to take forward the prosecution using the RRO now that Kurnal has given us the full picture re affected zones etc. The way the RRO is structured in dealing with this problem may seem overly complex but in reality it isn't
However that all said if it were merely a detector that was damaged, but the zone /system was still functional a prosecution would be IMHO very unlikely.
This from Wilkipedia which may or may not be sound advice but gives food for thought and for further examination.
Whether destruction or damage has occurred is an issue of fact and degree in each case and case law suggests that damage must be more than de minimis. In A (a juvenile) v. R (1978),[17] the defendant spat on a police officer's raincoat, which was easily wiped clean; it was held that this did not amount to damage within the 1971 Act. Similarly, in Morphitis v. Salmon (1990),[18] a scratch to a scaffolding pole did not affect its value or usefulness and thus damage had not been proved. The court said:
The authorities show that the term "damage" for the purpose of this provision, should be widely interpreted so as to conclude not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.[19]
A different conclusion was reached in Hardman v. Chief Constable of Avon and Somerset Constabulary (1986),[20] where graffiti, although eventually removable by action of rainfall, was actually washed away by the local authority, incurring expense, was held to be criminal damage.
It is sufficient that any damage be merely temporary: in Cox v. Riley (1986),[21] the deletion of the program from a computer-controlled machine, rendering it unusable, was held to constitute damage.
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The criminal damage route allows for speedy justice - as long as the nominal meets the criminal record criteria, the damage is less than £300 & the victim agrees then it's a quick £80 Penalty Notice for Disorder on the spot!
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It is yes . But as regards penalty it might not be as severe as the reg ref fire safety order. and kurnal do us all a favour and tell us the full story in future as you will get more accurate answers to your query. it went from a disabled detector to a full blown zone out of commission because of that.would have been handy to know that from square one.
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Please be so kind as to read my very first posting again Cleveland.
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Sorry Kurnal my mistake. Humble pie well and truly being eaten.
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You really need a more varied diet Cleveland!
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Firstly, thanks Kurnal i can now log in.
yes it is criminal damage. but it is likely it would be dropped by CPS as it would not be in the public interest to prosecute.
answer from wife of DD (senior crown prosecuter)
I had a case of a restaurant that had its fire exit door taped up. the police caught the guy eventually he accepted a caution.
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Thanks to all.
It has been suggested to me that Section 8 of the H&SAWA may be the best way forward. Trouble is I cant find any case histories of section 8 being used against which to measure this potential offence, it would rely on persuading the EHO to initiate the investigation and the problem had to be repaired as soon as possible thus damaging or destroying the evidence.