Fire Series: The Failures in Fire Investigation – Part 1 – No Crime Committed?

In my humble opinion, fire investigation carries the greatest risk of a miscarriage of justice compared to other forensic disciplines.  Why?  Mainly because it’s hard.  

Many forensic disciplines, such as DNA or fingerprints, focus on a specific area.  To investigate a fire the expert not only needs to understand fire, but they need to have at least some understanding about anything that can be involved in a fire.  This includes the obvious, like how fabric and furniture burns, but it also includes physics, electricity, self-heating, chemical reactions, flammable gases, building structure and collapse, firefighting tactics, people behaviours, alarm systems, arcs and sparks, effects of wind/weather, explosions and, recently, lithium-based batteries.  

Any fire can be a combination of these many factors.  Add to that the usual complexities of an investigation, such as lack of communication between agencies, funding issues and the cognitive bias effects that already cocoon the forensic profession, it’s no surprise that fire investigation carries a higher risk to the Criminal Justice System than most disciplines.

So, what can go wrong? Over the next few weeks, we will be considering the key issues we commonly encounter in our casework – was the fire actually a crime, is it the right suspect, and is it the right charge? 

No Crime Committed

To be fair, the title “no crime committed” is not quite the whole truth.  What I mean is that no arson has been committed.  There are a number of fires where a crime has been committed due to criminal negligence or breach of The Regulatory Reform (Fire Safety) Order 2005, but I’m talking about the act of arson.  

Fires are among the few incidents where the investigator doesn’t know if a crime has been committed before they arrive.  This means that an entire process can be anchored on what the fire investigator thinks at a very early stage and get stuck for that reason.  We’ve seen fires determined as arson which were actually caused by cigarettes or electrical failures, and fires flagged as electrical failures or cigarettes that were arson.  A few examples are:

• The accused was asleep on the sofa and woken by fire.  They were charged as the investigator couldn’t find an alternative explanation for the fire.  On examination, the fire looked to have started from an electrical cable that had been inadvertently moved from its original position away from the origin during extinguishment.
• In a fire in an airing cupboard, the fire investigator believed the fire was arson and stated they had ruled out an electrical cause from the immersion heater.  They took a close-up photo to show there was no burning to the related wiring.  However, the photo showed the insulation to the wires was charred and missing, and the earth wire wasn’t connected.  It was clearly an electrical failure.  In this case I believe cognitive bias effects played a major part in driving the investigator to the wrong conclusion as the accused had mental health issues.
• The accused was arrested for setting fire to a pub/restaurant thatched roof while people were inside. The fire was actually caused by a discarded lit cigarette placed in a container the pub had provided for people to put cigarettes in. 
• Following a fire that was believed to have started accidentally in a home, the accused was charged with returning to the home and starting a second fire.  Evidence to support this in terms of timing turned out to be highly unreliable, and there was additional evidence given by firefighters during the trial that supported reignition of the first fire.  

In all these cases, the charges were dropped following independent review.  

The key learning point here is that investigations and assessments can be mis-directed if conclusions are jumped to. It is critical that investigators focus on what the science tells them, and even more crucial that an independent review is commissioned if a defendant maintains their innocence.

Next week: Who did it? Find out how easily an investigation can point the finger at the wrong person.