Fire Fighters as Relevant Persons?
Fire fighter safety is often a confusing issue for the Courts following convictions under the Fire Safety Order.
Upon sentence Magistrates and Judges often state that the offences committed not only put residents, workers and tenants at risk but also, potentially put the lives or safety of Fire Officers at risk. The resulting sentence would usually reflect these aspects of the offences committed.
Strictly speaking, the Court should not take into account the risks (potential or not) to Fire Officers when acting in their capacity as a fire fighter carrying out their duties in relation to fire fighting, road traffic accidents and other emergencies. For an offence to be committed, relevant persons must be put at risk of death or serious injury, but the definition of “relevant persons” provided by Article 2 of the Fire Safety Order specifically excludes a fire fighter when fighting fires:
A2 – “relevant persons” ….does not include a fire-fighter who is carrying out his duties in relation to a function of a fire and rescue authority under section 7, 8 or 9 of thh Fire and Rescue Services Act 2004…
It is often difficult to explain to a Court why fire fighters are excluded from the provisions of the Order in this way. Fire Officers would be considered to be the group of people most likely to be put at risk of death or serious injury in the event of any fire within premises, which was caused as a result of a breach of the Order.
But there are numerous reasons for the exclusion. For example, it would be extremely difficult for a lay person to risk assess the actions of professional fire fighters when confronted with a rescue situation. In such a situation when the Fire Service attend they would usually take legal control of the premises for the purposes of carrying fire fighting or other rescue duties.
The Fire Safety Order enforces general fire precautions and does not get involved in highly detailed assessments of complex rescue risks. Responsible Persons are encouraged to complete risk assessments where the aim of the emergency plan is to get relevant persons out of premises and not to consider the likelihood of persons going into burning buildings for the purposes of rescue.
Nevertheless, a couple of recent cases have led me to question whether this exception should be reconsidered or at least whether there should be a specific offence of placing Fire Officers at risk of death or serious injury.
In a recent Merseyside case where relevant persons were residing in the roof space in breach of a Prohibition Notice, the exit route to the first floor was blocked off with plasterboard and the only exit route involved taking a route underneath the stairs and out through a cupboard door. It was pointed out to me that in a rescue situation, Fire Officers would have been completely unaware of how to get to the relevant persons and would effectively be placed in a dark, smoke and gas filled room, hearing numerous voices, but having no idea where the voices were coming from.
In another recent case, the person responsible for running a disused hotel as an HMO had cylinders of Acetylene placed in the vicinity of significant fire loading in the reception area by the final exit door.
In my view, both of these situations could have led to potential fire fighter fatalities, had fires occurred. The breaches prosecuted were as a result of some specific positive acts by the Responsible Person and, in my view, they went further than putting the lives of relevant persons at risk of death or serious injury, by seriously endangering any rescue attempt.
It led me to question whether or not I was legally entitled to bring this aggravating feature to the attention of the Court, because no particular offence was committed by compromising the potential fire-fighter’s safety.
Article 38 of the FSO deals with the maintenance of measures provided for protection of fire fighters. However, this Article deals mainly with the provision of suitable systems of maintenance for any measures provided for the safety of fire fighters, such as fire fighting water supplies, access and hard-standing for fire appliances. Failure to comply with Article 38 is an offence under Article 32(1)(a), but only if the breach of the duty on behalf of the Responsible Person to maintain the measures provided for the protection of fire fighters led to the situation where, as a result of the failure, one or more relevant persons (not fire fighters) were put at risk.
I appreciate that there is other legislation such as the Health & Safety at Work Act and the Fire Services Act 2004, which deals with the safety of Fire Officers and fire fighters. I also appreciate that an attempt to amend the Order to include such provision would be a complicated task. However, there are some offences which would plainly cause further difficulties for Fire Officers in an emergency rescue situation. The absence of a roll call, for example, could lead to Fire Officers going into burning buildings to save people who were not actually within the building. The absence of a person to liaise with about the circumstances of the fire and the occupants within the building could also lead to similar problems.
And is it right that just because the task of risk assessing the safety of Fire Officers would be difficult, the Responsible Person is let off the hook? Perhaps it would lead to a situation where only expert and qualified Fire Risk Assessors should be allowed to carry out Fire Risk Assessments?
It is clear that this is a complex issue. But there are other areas of legislation where particular groups of people are put at risk, and there are specific provisions dealing with the consequences of any regulatory breach.
Is it not now time that a breach which puts a Fire Officer in particular danger should not be a specific offence rather than a mere aggravating feature to other breaches of the Order?