When I train Fire Officers in relation to the issuing of Prohibition Notices, I always suggest that notices should sometimes be drafted in the affirmative rather than in the negative.
This means that Notices should include a Prohibition dictating only what is allowed, rather than what isn’t allowed. This makes it much easier to prove if there is a breach and a Prosecution follows.
This was illustrated in a recent case involving a breach of a Prohibition Notice which stated that the first floor of a mixed-use premises “cannot be used for sleeping or living accommodation”.
This is a common restriction where there is living accommodation of concern above commercial premises.
The only problem with that terminology is that when, as in this case, the Fire Officers returned a year later to come to check that the Notice was being complied with, there was evidence of sleeping and of persons living within the accommodation.
But proving that the relevant persons were living or sleeping there can be difficult.
The Defendant pleaded not guilty to breaching the Prohibition Notice, on the basis that he had been allowed to continue to work on the ground floor of the premises, and that he was only using the first floor for cooking meals during his working hours. He denied sleeping at the premises after the prohibition notice had been issued.
Fortunately, the Fire Officers who had issued the Prohibition Notice in January 2023, had taken photographs, one of which included a photograph of the bed and the bedding upon it. The Fire Officers, when issuing the Prohibition Notice, had told the Defendant to remove the bed from the premises.
Under cross examination, the Defendant stated that he had followed that advice and had packed the bed away following the issuing of the Prohibition Notice, as he was determined to “comply with the law”.
When Fire Officers returned in January 2024, the fridge was full of foodstuffs, the premises was full of ornaments, clothes and washing and, significantly, a bed with bedding upon it. Of more significance, was the fact that the bedding was clearly different bedding to that which had been on the bed in January 2023.
Suffice it to say, the Defendant, under cross examination, was unable to provide a credible explanation as to why the bed had been made up with a different set of bedding in January 2024 if, as he had stated, he and his wife had not slept at the premises since the notice was issued.
Not surprisingly, the Defendant was found guilty of breaching the Prohibition Notice and fined £300 but also ordered to pay £4,000 towards Prosecution costs.
Of course, the premises might not have had such a clearer indication of the Defendant living at the premises. This would have made it harder to prove that he and his wife were still living above the shop.
Had the Prohibition Notice been drafted in the affirmative, with terms that the first floor could only be used for storage or for use of the toilet, the Defendant would have found it much harder to explain the foodstuffs in the fridge, the ornaments, the dirty washing and the ready-made bed.
Consideration should be given for Prohibition Notices to indicate only what is allowed at the premises, rather than simply prohibiting what is not. For example, ‘use of the first floor of the premises is prohibited, except for storage, remedial works and use of the toilet.’
This makes it easier to prove breach of the Notice if any prosecution follows for breach of the notice.
