Offences under the Fire Safety Order

[Clevelandfire 3]

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!!!!!!!!!!!!!!!!!!

[CivvyFSO]

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.

[Midland Retty]

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.

[kurnal]

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.

[nearlythere]

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?

[CivvyFSO]

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.

[kurnal]

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? 

[CivvyFSO]

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.

[CivvyFSO]

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.

[kurnal]

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.

[CivvyFSO]

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)

[nearlythere]

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?

[Midland Retty]

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.

[CivvyFSO]

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)

[nearlythere]

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.