Use of formal cautions

[val]

I have been digging around a little bit because of revised guidance from the Home Office.

Most regulators use the 'formal caution route' to a greater or lesser degree and base their process on Home Office Circular 18/1994. This was revoked in 2005 and replaced by Home Office Circular 30/2005 introducing 'simple cautions' and signposting further circulars regarding 'conditional cautioning'.

However, the 30/2005 circular only references the Police and doesn't indicate that other Regulators could pick up this new guidance. Can we continue as before or do we revise our processes? Do we stop doing cautions completely? Any ideas?

[davio1960]

Hi Val
I believe FRS are still using the caution as it is still considered a legal admittance of guilt.
Cautions are served/issued for each offence.
These cautions, as always, can be brought back into future legal cases through the courts if the person/company re-offends.
Cheers

[PhilB]

I have been in the fire service for 27 years, and I have specialised in fire safety since 1995. I do believe that the fire safety order has tidied up what was a confusing situation.

I also am convinced that the safety of everyone will only be ensured if the Order is effectively enforced. Yes, cautions may go some way to securing compliance but I also think that a few high profile court cases will persuade those responsible to comply.

Unfortunately I am also aware that many FRS are failing in their duty to enforce the Order including my employer.

I am an inspector and very recently I inspected a shop that had two fire exits locked and completely obstructed by stock to such an extent that the doors could not have been opened. Persons on the first floor had no means of escape.

As a result of this the employees and staff were, in my opinion, placed at serious risk.

I gathered the evidence in my notebook and with photographs and I cautioned the manager when I felt it necessary to question him regarding the contraventions.

On returning to my office I researched the file and discovered that the same person had committed exactly the same offence a few years ago and had been informed in writing that any further contraventions would result in legal proceedings.

But this RP was a cute cookie, he complained about me.....apparently I upset him when I issued the caution. The end result?  I am being investigated with a view to disciplinary action, the poor RP has been told to disregard any letters sent by me. Will he be prosecuted??? answers on a postcard but I doubt it.

My boss thinks that if we pursue this it may appear that we are being vindictive because a complaint was made. Incidently he also believes that persons were not placed at risk because there was no fire!!!!!!!

So for all you unscrupulous employers I recommend you move to my brigade area and set up business. Ignore your statutory duty and place people at risk...it's cheaper that way, and if an inspector catches you...just complain and the matter wil be dropped.

For all those who live or work in my area...I recommend that you move!

P.S. I have the photos if anyone is interested in them, very useful training aids!!!

I must point out that I live in Gloucestershire but do not work there.....happy days......Merry Christmas everyone.

[kurnal]

Phil
The failure of fire brigade management to take legal action when clearly appropriate has been widespread for many years.
Most brigades have been reluctant to do this- as an enforcement authority most did not have the policies, procedures, resources, legal training  or legal advice available to do it effectively under the old legislation but I thought things were changing under the RRO.

For this reason I am curious whether you see your example as being a corporate failure of an authority not equipped to do its duty, because of the historic reasons or the failure of a local manager to act in accordance with the policies? Has that manager perhaps not been trained or had burnt fingers in the past? I recollect one case where we had someone bang to rights that was lost through dire legal representation- as an area FPO it made me very reticent about ever taking any action as we were tied to use the same in house team.

Do brigades have a policy on proportionality- to me locked and blocked exits are cardinal sins and should be met with the full force of the law, whereas failure to test, maintain or train may be less serious. But thats my view- is there any policy or guidance on scoring potential  breaches or offences?

[PhilB]

There does appear to be a reluctance to prosecute and this is a corporate failure, which I do believe the organisation is trying to address. Most inspecting officers have received appropriate training but, as is often the case, that training does not include the most senior managers.

Unfortunately as soon as anyone complains it is the inspector who is immediately under suspicion and is investigated. Of course questions need to be asked to make sure that the inspector has acted appropriately....but a little support from senior management would be nice.

In my case as soon as the complaint was made a senior officer immediately attended and told the RP to ignore the nasty inspector!

If inspectors are treated in this way surely inspectors will be reluctant to pursue any enforcement action that may upset our 'customer'.

But who is looking after the safety of all our other customers??

In this example the exits were not slighly obstructed...they were locked and completely obstructed, the worst contravention I have ever seen, people were at risk and it has happened before in the same premises whilst under the control of the same person.

[kurnal]

Were the locked doors and obstructions still in place when the senior officer attended?

Presumably you will now be seeking guidance on how to handle similar events in the future. When things are so blatant and clearly an offence you really have no option but to immediately identify and caution the RP. That does usually limit the development of any further conversation though!!!.

This leads to a very fundamental issue in which complaints and legal enforcement procedures need to be integrated. If a person has been cautioned by one representative of an authority, how can another member then go and interview the person in respect of the same events outside that caution?

[Tom Sutton]

My understanding in once the caution has been given anything said before the caution cannot be used in evidence, everything after can and the caution remains in place until the case is dropped or goes to court.

If the accused is interviewed after the initial interview the caution does not have to be repeated only the accused has to be reminded s/he is still under caution. Therefore all subsequent interviews are not outside the caution but if s/he is not reminded then it could be excluded from evidence. Check out PACE I believe we are subject to it the same as the police.

I cannot understand why they will not prosecute providing they have good case or is it about costs if they lose.

I was involved in a case and the accused took on a QC so we took OC advice, incidentally it cost us £800 for a half hour interview plus his study time, his advice was we would lose so we dropped the case and costs were awarded against us. To my relief the courts agreed the costs should be paid out the public purse and all we paid for was the QC advice.

Also I cannot remember having to pay costs, we won most cases and the ones we lost must have been out of the public purse.

[PhilB]

No the contraventions were rectified while I was there so the senior manager did not see the problems, nor did he ask me what I had seen.

To comply with PACE the caution does not need to be given when an offence is identified, but it must however be given before a suspect is questioned about the offence.

Quite right Kurnal that does tend to curtail any conversation when the caution is given. I never issue a caution until I have to....and I record anything that may be volunteered by anyone present.

In this particular case when I was satisfied that an offence had been committed, and I wanted to ask questions regarding the offence I then issued the caution.

TW if a suspect is interviewed at a later stage it is not sufficient to remind him/her that they are under caution, the full caution must be given again.

Personally I don't think I will ever issue a caution again, I am considering my future in fire safety, and indeed whether to remain with my current employer as it is impossible to work effectively without the required support.

[val]

Phil,

In our current, rather mad world you have already crossed a rubicon because your employer will no doubt try to identify you and take disciplinary action for, well anything they can think of these days under ACAS, on account of these posts.

I am rather luckier because my employer is quite prepared to take legal action and would have undoubtedly in the circumstances you relate.

I know it is easy to load the bullets but having gone this far, I would make a formal complaint to the CFO and see where it goes. Once the local press get hold of it they will have a field day. I am not usually a fan of washing dirty linen in public but sometimes it is the only way to shake some of the current leadership up. From what you have written, it would seem that the Officer is guilty of an offence himself. (Formally it would have been 'neglect of duty', but you can make it up yourself these days).

I have no doubt that you acted properly in using the caution, as per pace, etc and gathered evidence for the charge. What bit of the public interest would not be served by bringing this case?

[messy]

Phil

I would personally would hold fire with going public and use it only as a last resort. It's fair that all allegations must be investigated even though it's pretty sure this is a delaying or cancellation tactic by the RP. So it might be best to let the process run before talking too loudly.

In parts of my Brigade area, it is becoming increasingly apparent that word has got around in certain communities about complaining about the Inspecting Officer's behaviour. If the RP adds a racist or sexist angle to the allegation, that gives them even more leverage as it ups the Brigade Management's anxiety-of-polictally-correct-embarrassment level to bursting point.

As for a reluctace to prosecute, my employer are keen to prosecute where possible and issue regular management rhetoric saying so. But, when push comes to shove, somewhere in the long drawn out process, someone usually gets cold feet about an 'i' not dotted or a 'T' not adequately crossed and crash bang wallop, the prosecution collapses. God forbid we might fail and be left with egg on our face. I have many examples, including on one job the RP lived in the middle east. You would have thought he lived on Mars for all the grief that caused


I am now in Phil's position and would do almost anything to avoid prosecuting. Frankly, I have got better things to do than collect statements, search out who is the RP, collect collate and caption photos, Attend hours of meeting (and meeting about meetings), chase our or their legal team, resubmit work that's been 'mislaid' and then be told.........this case has been running too long, we may have to consider another approach!!!!!

After the debate on a previous thread, I daren't mention Fixed Penalty Notices,. But - maybe that's the only way to efficiently secure any increase in compliance

[Tom Sutton]

Phil

10.8 After any break in questioning under caution, the person being questioned must be made aware they remain under caution. If there is any doubt the relevant caution should be given again in full when the interview resumes.

I guess it depends how you interpret it.

Play it cool remember the old adage “Act in haste repent at leisure" I have found that out to be very true.

[PhilB]

Phil

10.8 After any break in questioning under caution, the person being questioned must be made aware they remain under caution. If there is any doubt the relevant caution should be given again in full when the interview resumes.

I guess it depends how you interpret it.

Play it cool remember the old adage “Act in haste repent at leisure" I have found that out to be very true.

Thanks TW I will play it cool. I think you'll find that 10.8 is referring to a break in an interview not a break of a few days between the intial caution and a subsequent interview.

[jokar]

Phil,

I feel for you.  Those IO's out there who attempt to do the best job they can with the information that is provided and learnt for themselves are often a target for being too good.  Perhaps the way forward for all brigades is to dump the bit about inspections in the National Framework Document and IRMP Circular 4 and just concentrate on acting once a fire has occurred.  Not a good stance I agree but is takes IO's out of the firing line.

[Tom Sutton]

You are most probably right Phil but nowhere I can find a definition of break, that’s why I say it’s open to interpretation.

I found a useful link on PACE. http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/ worth a look for enforcers.

[davio1960]

Val
Apologiez I got the wrong end of a very short stick, I interpreted your formal caution as the legal admittance of guilt by the RP and not as the full caution as under PACE... "you do not have to say anything however....etc..."
Just for interest my service provides both services! ...often following BAR council direct advice.

Similar to PhilB I  have also had complaints made against me. On 2 occassions the premises were in a poor state and the RP's defence was attack. The RP made a formal written complaint and I was removed from the job  (frustrating and very worrying at the time) another inspector continued,  visited and on both occassions the same level of enforcement went ahead whilst the complaint was investigated by an independant person not associated with my department.

Due to the very nature of the Fire Safety Order making it a statutory duty for FRS to enforce, in a very short period of time my service had received lots of complaints. Human nature does not like to be found wanting.
My FRS recognised this and whilst not supporting or condonning any insoectors actions accepted more complaints would occur. Our policy is now to investigate where the complaint is made in writing. This is a lengthy process but I believe to be fair and in the spirit of the Enforcement Concordat

What I find amazing is how will the FRS in question demonstrate they are enforcing. The corperate risk to that FRS places their RP in a very difficult position if a fire was to happen and a death to occur. How would the RP demonstrate to the family of the deceased through the Coroner that they carried out the correct level of enforcement using the correct tools available to them.
Imagine a police officer letting off a drunk driver who had tested positive and the police officer had witnessed and recorded the dents in a number of cars he hda driven into, the tread worn tyres and blowing exhaust and had a positive breath test. How would the public react if the drunk driver went round the corner and drives into a cue of kids at the school bus stop?

I say HUMBUG
Seasons greetings to all the sane people if your not sane be safe!