Offences under the Fire Safety Order

[kurnal]

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?

[nearlythere]

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?

[Midland Retty]

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.

[kurnal]

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.

[Indiana]

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.

[CivvyFSO]

A gold star goes to Indiana. They most certainly could be prosecuted under 32(10).

[Midland Retty]

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

[CivvyFSO]

Yes, but it wouldn't take much to show that someone overriding the detection within a hotel bedroom is putting people at risk.

[Midland Retty]

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.

[kurnal]

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.

[Midland Retty]

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.

[Indiana]

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..

[CivvyFSO]

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.

[SamFIRT]

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.

[kurnal]

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.