Question for fire risk assessors

[terry martin]

there are 2 clearly different points both being discussed here

1. the RA's does a good job and is ignored or disagreed with. the accountability is with the RP.
I think i'm right in saying we all agree on this one?


2. the RA's does a bad job and is listened to, and it all goes pear shaped. they are both accountable.

NT.

 in response to your point, yes i agree with you completely that the 'Assistant' (i am assuming you mean an appointed RA'r) has no control over implementing the Significant findings. and therefore cannot be held accountable in respect of this.

but he would have control over what significant findings had been established, having done this as a proffessional on behalf of the RP. If they are wholey inadequate and lead to a dangerous situation then he must be held accountable within a court for this (only if it got that far, i'm not saying anyone who does a bad RA should be strung up in court. Although! Hmmm ).

[Midland Retty]

Hi Terry

Yes agree totally with your interpretation. Be intresting to see a test case on this.

One thing that does bother me however is this:

If I, as an RP, employ a fire alarm engineer to install a brand new fire alarm system, and I go to painstaking lengths / do everything possible to check that the engineer is competent, suitably qualified, trustworthy etc etc and yet that engineeer still makes a mistake, it seems harsh I would also be deemed responsible for any failings / offences committed as a result.

The order clearly states in article 32(11) That "Nothing in this order operates so as to afford an employer a defence in any criminal proceeedings...etc etc".

Taking that a step further is it not a similar scenario to me going to get my car's breaks replaced at a local garage and lets imaginge the mechanic fails to fit them properly and subsequently  I drive out the garage and half a mile down the road kill somone because my breaks fail... who is liable / repsonsible?

[terry martin]

MR. is see where your going. but i think the interpretation of that is,

There is nothing within the RRO which would afford an employer any defence against proceedings. meaning there is no article or para. that he could automaticaly use as a defence. i.e. well, i employed him/ told him to do it in accordance with x article. or, under article x it says that his job.

going on to article 33. His only defence is demonstrating he showed due dilligence in appointing, reviewing, monitoring, and any other ...ing that may fall within the realms of that person being employed/contracted.

just to add a bit more;

if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.

 In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.

[afterburner]

Terry
both yourself and Retty (and other contributors) have really developed this thread and show great understanding of who does what. I find myself nodding along in agreement with what you say.

It appears we agree about the comptent fire risk assessor, and as for the incompetent, charlatan type assessors, well maybe this thread isn't the place to discuss their fate.

[Midland Retty]

MR. is see where your going. but i think the interpretation of that is,

There is nothing within the RRO which would afford an employer any defence against proceedings. meaning there is no article or para. that he could automaticaly use as a defence. i.e. well, i employed him/ told him to do it in accordance with x article. or, under article x it says that his job.

going on to article 33. His only defence is demonstrating he showed due dilligence in appointing, reviewing, monitoring, and any other ...ing that may fall within the realms of that person being employed/contracted.

Thanks Terry . I'd forgotten about article 33 (its hidden at the bottom of the page on my copy of the RRO) and I see where you are coming from in terms of Article 32(11)

All is clear!

[nearlythere]

Then expand it, I am a surveyor and I am called in to survey the place and I see the guttering is unsafe, yes I should tell the owner that the guttering is unsafe but do I now have to take steps to make the gutter safe?

No, but if he appoints you to tell him whether the gutter is safe or not, and you tell him that it's safe. subsequently the gutter falls of and kills someone. then you are accountable for that

On the other hand if I own a property which has a defective gutter, which the surveyor failed to identify, and it fell on someone who was walking down the street, who would the victim sue?

[PhilB]

if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.

 In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.

I disagree Terry, it is for the FA to investigate and decide who in their opinion has committed the offence. Once that is decided I would expect them to take it to their barrister. They may ask for the odd opinion here and there but they are the ones carrying out the investigation and gathering the evidence.

The barrister would be very busy, and very expensive if he had to trawl through all the IOs material in every case.

If the RP can show due dilligence it should be established in the investigation and the FA should not waste time and money taking him to Court in the first place.

If the offence is so serious and a prosecution is considered appropriate, it would not necessarily be the RP who finds himself in court.

Lets say the RP appoints who he thought was a competent risk assessor and showed due dilligence in checking his credentials, and the assessor turns out to be a numpty.

The Numpty assessor may be the one who is prosecuted by virtue of article 32(10). He does not need to have any control.

[terry martin]

if an offence was committed that was so sever it warranted prosecution, the RP would find himself in court. it is there he would have to demonstrate DD.
The person who to the extent had control would also be there trying to prove his DD.

 In an investigation by a Fire Authority, it is not up to them to decide who is guilty and who is not. their job is to establish what offences have been committed, and WHO, to their extent, had control of those matters. they are then required to gather the most comprehensive case possible, regardless if that evidence demonstrates guilt or not. It is then upto the barrister to decide who if anyone has a case to answer. And subsequently the courts to decide who, if anyone, is guilty.

I disagree Terry, it is for the FA to investigate and decide who in their opinion has committed the offence. Once that is decided I would expect them to take it to their barrister. They may ask for the odd opinion here and there but they are the ones carrying out the investigation and gathering the evidence.

The barrister would be very busy, and very expensive if he had to trawl through all the IOs material in every case.

If the RP can show due dilligence it should be established in the investigation and the FA should not waste time and money taking him to Court in the first place.

If the offence is so serious and a prosecution is considered appropriate, it would not necessarily be the RP who finds himself in court.

Lets say the RP appoints who he thought was a competent risk assessor and showed due dilligence in checking his credentials, and the assessor turns out to be a numpty.

The Numpty assessor may be the one who is prosecuted by virtue of article 32(10). He does not need to have any control.

Where you say it is up to the FA to decide 'who they believed committed an offence' that’s kind of the same as, what are the offences, and who, to their extent, had control over those matters. They are the people we would have believed to of committed an offence, and the people we would gather evidence on. so in a way i think we both agree there.

With regards to your other point, the process of whether the case goes to court (within our FA) involves 2 means tests.

1. Public interest, does the brigade believe it would be in the public interest for the case to brought to court. Or would it be more reasonable to be dealt with by means of enforcement. Generally enforcement is the most appropriate course of action. If the investigation was 'post fire' then it would generally pass this test and then would go on to the second means test.

 (At this point we would gather all available evidence, whether that be for or against all persons we believed may have possibly committed an offence.)

2. Sufficient evidence. After the investigation we present the case to our legal team who ensure all legalities have been met within the evidence. It is then passed on to the barrister. it is then their decision which, if any, person has a case to answer.

it is a legal point, we are in a way like police (within this example only!!) when they arrest someone they do so believing that person has committed an offence. Not on the basis that they know they are guilty.

They then collect ALL available evidence. Not just the evidence that proves that persons guilt. After collecting all available evidence, it may become apparent that the person is completely innocent and the investigation has raised new suspects. Only once they have collected enough evidence against the person they believe to of committed the offence, does that person get charged with the offence.

But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.

One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far

[Davidrh]

Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB

[PhilB]

But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.

One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far

But as you know Terry the FSO is mainly enforced by the FA, there is no equivaent to the CPS so it is the FA who must decide.

But the nmain point I was trying to make was that any person, regardless of whether or not they have any control, can be prosecuted under 32(10) including the risk assessor, alarm engineer, employee etc.

[terry martin]

But the police do not bring the case to court, they provide the evidence to the barristers within the CPS, it is they who decide if there is a sufficient enough case to answer, that it warrants being heard in a court.

One final point. Not every case will be seen by the barrister. On many occasions it will never get that far. The FA in there investigation and within means test 1. Can decide the offence does not warrant prosecution. It is only in sever cases will it ever get that far

But as you know Terry the FSO is mainly enforced by the FA, there is no equivaent to the CPS so it is the FA who must decide.

But the nmain point I was trying to make was that any person, regardless of whether or not they have any control, can be prosecuted under 32(10) including the risk assessor, alarm engineer, employee etc.

absolutely. we decide if we ant to prosecute. the barrister decides if we have enough evidence to take it to court.

[PhilB]

Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB

No David but the law requires the risk assessment to be suitable and sufficient, therfore it must be carried out by someone who is competent. If the RP is not competent he needs some training or he needs to take professional advice.

[terry martin]

Can I ask a stupid question.
Does the law require the RP to employ an FRA.
If not, and in view of the comments above, is the RP not better to do it alone in association with his local FB

No. the law (RRO) requires the RP to undertake a risk assessment. but if he is not competent, he can, if he wants appoint someone.

THe FA will not assist him in carrying out a RA but will offer guidance on where to get info i.e. point them in the direction of the Responsible persons guides.

please don't confuse earlier comments in this thread about the FA offering advice and guidance in respect of achieving compliance. with them being there to hold someones hand through the whole process.