It is now widely acknowledged that our risk based fire safety legislation is causing confusion on the part of many premises managers. What is not so well known is that the new regime is also throwing up issues for fire investigators, as Ron Alalouff found out at a recent BRE seminar.
The Regulatory Reform (Fire Safety) Order 2005 consolidated existing fire safety legislation under a new regime. It is based on the requirement that a person responsible for the premises is under a duty to take what are described as ‘general fire precautions’ and to undertake a fire risk assessment of the premises to safeguard everyone in it in the event of fire. This change is not as radical as it seems, because such a duty already existed – at least as far as places of work and employees were concerned – in the shape of the Fire Precautions (Workplace) Regulations 1997. This duty was extended beyond places of work by the Regulatory Reform (Fire Safety) Order 2005 (FSO), which also abolished the system of fire certificates issued by fire and rescue services under the Fire Precautions Act 1971.
So what issues does the FSO throw up as far the investigation of fires is concerned? First of all, the legislation was drawn up in broad terms, so definitions such as ‘suitable and sufficient’, ‘where necessary’ and ‘to the extent that it is reasonable and practicable’ are left deliberately vague, either for common sense to prevail, or for the courts eventually to fill in the detail. Similarly, a competent person is described as someone ‘with enough training and experience or knowledge and other qualities to be able to implement these measures properly’. But how is the lay person who needs help expected to decide who is competent on that basis?
Investigation priorities
Where there is any suspicion of a fire having been non-accidental, fire investigators usually focus, in the first instance, on the cause of the fire – was it started deliberately and if so, by whom? But as well as determining the cause, should the investigator also be looking at potential breaches of the FSO by the responsible person? After all, even if the cause of the fire turns out to be deliberate and the culprit identified, breaches of fire safety legislation may well have exacerbated the fire, increasing the chances of death, injury and greater damage to property.
In such a case, the first port of call for a fire investigator may well be the fire risk assessment – was there one, and if so, what does it say? But if this document went up in flames with the rest of the building, there is little chance of ascertaining whether the responsible person had or had not discharged his or her duties, and the investigation is already handicapped from the outset. To avoid this situation, consideration should be given to keeping a copy of the fire risk assessment inside a fire-resistant storage unit such as a premises information box, as well as keeping a copy off the premises, for example at a secure site or lodged with legal representatives. We may even need to get to a stage where a copy of the fire risk assessment is deposited with the local fire and rescue service, although there is no formal procedure for this at present.
In such a ‘dual track’ investigation, there may well be a conflict between the arson side of the investigation, and that examining whether the responsible person’s legal duties under the FSO had been met. For example, suspects in criminal investigations should be interviewed using the procedures and principles enshrined in the Police and Criminal Evidence Act 1984 (PACE) and the various codes of practice flowing from it. But what if an owner or manager of a premises is merely a witness in the arson element of the investigation, but may later become a suspect in the fire safety legislation aspect of the investigation, which is also part of criminal law, albeit not on the same level as arson? In such a case, it may be that the only safe way to proceed would be to interview all witnesses under the provisions of PACE, just in case their status in the fire safety ‘phase’ of the investigation may change from witness to that of suspect. In reality, this may be too cumbersome a procedure to put into practice, so the question then needs to be asked whether there is a case for a different type of investigation in such cases?
The issues for fire investigators can be as taxing as those for the lay person in terms of pinning down the role of people owning, running or working at a premises. Firstly, who is the responsible person? Is it an individual or a corporate body (in law, corporations can be legal ‘persons’) and if it is a corporate body, who is/are the individual or individuals who can discharge those duties? What of a situation where responsibility may be shared, such as a school built under the Private Finance Initiative (PFI) and managed jointly by the PFI provider and the head teacher (helped by his or her staff)?
The other potential area of conflict is when the local fire and rescue service has an operational problem at an incident and may subsequently be liable under health and safety legislation or under common law. You may then get a situation where that fire and rescue service is investigating or even prosecuting someone, while at the same time it could be investigated or prosecuted by, for example, the Health & Safety Executive about the same incident.
Striking a balance
A further point for potential confusion for the beleaguered responsible person is whether the provision of fire safety equipment may be outweighed by the potential risks associated with having it in the first place. Such a situation came to light last year when it was decided to remove portable fire extinguishers from the common areas of a block of flats in Bournemouth. This was justified with a risk assessment which concluded that in the event of a fire in one of the flats, the risk to a resident (untrained in the correct and appropriate use of an extinguisher) coming out of the flat, grabbing an extinguisher and then going back into the flat to fight the fire would be greater than any benefit from having the extinguishers in the first place! Although on the face of it such decisions may serve only to confuse the situation for the responsible person, it could be argued that so long as the decision was recorded and justified in a fire risk assessment, a prosecutor would have difficulty in persuading a court that a suitable and sufficient risk assessment was not made.
As well as being versed in fire science, legislation and regulations, fire investigators also need to use a lot of common sense on site in determining whether or not the property has been adequately managed. They need to take into account issues such as means of escape, modern fire loads, and the importance of fire doors. Signage can also be an issue – sometimes too much of it can be just as bad as not enough of it – leading to potentially fatal confusion on the part of occupants trying to escape.
To summarise, findings from fire investigations are needed to support and refresh our existing knowledge base and ongoing research work, to provide an essential link to events in the ‘real world’, and ensure the maximum confidence in our understanding of fire, fire safety, and in guidance. Such findings can also underpin community fire safety and monitor the effectiveness of the FSO. It is therefore important that we maintain and develop the dialogue between fire investigators, fire scientists, fire engineers, fire risk assessors and fire safety officers and that as a society, we are clear about what we want to achieve from the legislation and any investigations conducted in its wake.
This report is based on the presentation given by Martin Shipp at the BRE Seminar on the future of fire investigation and research at BRE in Watford on 12 February 2009. Martin Shipp is technical development director of fire safety at BRE and has been involved in numerous fire investigations.
It is now widely acknowledged that our risk based fire safety legislation is causing confusion on the part of many premises managers. What is not so well known is that the new regime is also throwing up issues for fire investigators, as Ron Alalouff found out at a recent BRE seminar.
The Regulatory Reform (Fire Safety) Order 2005 consolidated existing fire safety legislation under a new regime. It is based on the requirement that a person responsible for the premises is under a duty to take what are described as ‘general fire precautions’ and to undertake a fire risk assessment of the premises to safeguard everyone in it in the event of fire.
This change is not as radical as it seems, because such a duty already existed – at least as far as places of work and employees were concerned – in the shape of the Fire Precautions (Workplace) Regulations 1997. This duty was extended beyond places of work by the Regulatory Reform (Fire Safety) Order 2005 (FSO), which also abolished the system of fire certificates issued by fire and rescue services under the Fire Precautions Act 1971.
So what issues does the FSO throw up as far the investigation of fires is concerned? First of all, the legislation was drawn up in broad terms, so definitions such as ‘suitable and sufficient’, ‘where necessary’ and ‘to the extent that it is reasonable and practicable’ are left deliberately vague, either for common sense to prevail, or for the courts eventually to fill in the detail. Similarly, a competent person is described as someone ‘with enough training and experience or knowledge and other qualities to be able to implement these measures properly’. But how is the lay person who needs help expected to decide who is competent on that basis?
nvestigation priorities
Where there is any suspicion of a fire having been non-accidental, fire investigators usually focus, in the first instance, on the cause of the fire – was it started deliberately and if so, by whom? But as well as determining the cause, should the investigator also be looking at potential breaches of the FSO by the responsible person? After all, even if the cause of the fire turns out to be deliberate and the culprit identified, breaches of fire safety legislation may well have exacerbated the fire, increasing the chances of death, injury and greater damage to property.
In such a case, the first port of call for a fire investigator may well be the fire risk assessment – was there one, and if so, what does it say? But if this document went up in flames with the rest of the building, there is little chance of ascertaining whether the responsible person had or had not discharged his or her duties, and the investigation is already handicapped from the outset.
To avoid this situation, consideration should be given to keeping a copy of the fire risk assessment inside a fire-resistant storage unit such as a premises information box, as well as keeping a copy off the premises, for example at a secure site or lodged with legal representatives. We may even need to get to a stage where a copy of the fire risk assessment is deposited with the local fire and rescue service, although there is no formal procedure for this at present.
In such a ‘dual track’ investigation, there may well be a conflict between the arson side of the investigation, and that examining whether the responsible person’s legal duties under the FSO had been met. For example, suspects in criminal investigations should be interviewed using the procedures and principles enshrined in the Police and Criminal Evidence Act 1984 (PACE) and the various codes of practice flowing from it.
But what if an owner or manager of a premises is merely a witness in the arson element of the investigation, but may later become a suspect in the fire safety legislation aspect of the investigation, which is also part of criminal law, albeit not on the same level as arson? In such a case, it may be that the only safe way to proceed would be to interview all witnesses under the provisions of PACE, just in case their status in the fire safety ‘phase’ of the investigation may change from witness to that of suspect. In reality, this may be too cumbersome a procedure to put into practice, so the question then needs to be asked whether there is a case for a different type of investigation in such cases?
The issues for fire investigators can be as taxing as those for the lay person in terms of pinning down the role of people owning, running or working at a premises. Firstly, who is the responsible person? Is it an individual or a corporate body (in law, corporations can be legal ‘persons’) and if it is a corporate body, who is/are the individual or individuals who can discharge those duties? What of a situation where responsibility may be shared, such as a school built under the Private Finance Initiative (PFI) and managed jointly by the PFI provider and the head teacher (helped by his or her staff)?
The other potential area of conflict is when the local fire and rescue service has an operational problem at an incident and may subsequently be liable under health and safety legislation or under common law. You may then get a situation where that fire and rescue service is investigating or even prosecuting someone, while at the same time it could be investigated or prosecuted by, for example, the Health & Safety Executive about the same incident.
Striking a balance
A further point for potential confusion for the beleaguered responsible person is whether the provision of fire safety equipment may be outweighed by the potential risks associated with having it in the first place. Such a situation came to light last year when it was decided to remove portable fire extinguishers from the common areas of a block of flats in Bournemouth.
This was justified with a risk assessment which concluded that in the event of a fire in one of the flats, the risk to a resident (untrained in the correct and appropriate use of an extinguisher) coming out of the flat, grabbing an extinguisher and then going back into the flat to fight the fire would be greater than any benefit from having the extinguishers in the first place! Although on the face of it such decisions may serve only to confuse the situation for the responsible person, it could be argued that so long as the decision was recorded and justified in a fire risk assessment, a prosecutor would have difficulty in persuading a court that a suitable and sufficient risk assessment was not made.
As well as being versed in fire science, legislation and regulations, fire investigators also need to use a lot of common sense on site in determining whether or not the property has been adequately managed. They need to take into account issues such as means of escape, modern fire loads, and the importance of fire doors. Signage can also be an issue – sometimes too much of it can be just as bad as not enough of it – leading to potentially fatal confusion on the part of occupants trying to escape.
To summarise, findings from fire investigations are needed to support and refresh our existing knowledge base and ongoing research work, to provide an essential link to events in the ‘real world’, and ensure the maximum confidence in our understanding of fire, fire safety, and in guidance. Such findings can also underpin community fire safety and monitor the effectiveness of the FSO. It is therefore important that we maintain and develop the dialogue between fire investigators, fire scientists, fire engineers, fire risk assessors and fire safety officers and that as a society, we are clear about what we want to achieve from the legislation and any investigations conducted in its wake.
This report is based on the presentation given by Martin Shipp at the BRE Seminar on the future of fire investigation and research at BRE in Watford on 12 February 2009. Martin Shipp is technical development director of fire safety at BRE and has been involved in numerous fire investigations.
