Fire Series: The Failures in Fire Investigation – Part 3 – Wrong Charge?

In Parts 1 and 2, we introduced you to the key issues we commonly encounter in our fire investigation casework, showing how easily cognitive bias can lead to the perception of a crime having taken place when there may not be one, and how easy it can be to identify the wrong suspect. Missed it? Catch up on Part 1 and Part 2 .

So now we know a crime was committed, and we have the right suspect – but is it the right charge?

Wrong Charge

A common aspect of fire cases is charging people with arson with intent to endanger life or arson reckless as to whether life was endangered even where the circumstances would not reasonably meet the criteria for life to be at risk.  For example:

• An elderly person (with some mental health issues) set fire to a bin in an otherwise empty assisted living facility with fire protection measures in place.  The damage was minor, and the fire was extinguished quickly.  They were charged with arson with intent but following independent review the case was discontinued.  
• In a hospital toilet a person had what appeared to be a psychotic episode whilst staff were trying to get him out.  The fire was extinguished with a boot and the damage never repaired as it was small, but he was charged with reckless arson.  The case was ultimately discontinued.
• A person set fire to a car that was parked several feet away from a house and behind a concrete wall. They were charged with reckless arson on the basis that the fire could have spread to the house, but it was not reasonably possible this could have happened.   The charge was reduced to arson, to which he pleaded guilty.  
• A fire had started to spread next door after burning out an unoccupied semi-detached home that was being renovated.  The accused was charged with arson with intent/reckless arson.  The fire investigator believed an accelerant must have been used because the search dog “hit” (indicated) on an area in the debris.  Two debris samples were taken but no laboratory analysis was done at the time of the report. The samples were submitted 3 years later by which time both bags had holes through them which can allow any accelerant to escape (if it was present) or an external accelerant to contaminate the contents.   Although a trace of gasoline was detected in one bag, it was not possible to say whether or not this was from contamination due to the condition of the bag and the time interval.  It was also not known if petrol presence was legitimate – for example if the contractors had used petrol-powered equipment; no one had asked at the time and three years later no one knew.  The arson charge was dropped. 

[This raises an interesting issue.  Fire investigators frequently produce reports forming opinions about the use of an accelerant without waiting for laboratory results to come back and without stating in their report whether or not those results are required to finish the report.   The police are responsible for lab submissions and paying for the analysis to be done, but if they already have a report that says an accelerant was used then there is no reason to send a sample away.]

Again, this comes down to a thorough independent investigation. As a layperson, it is easy to jump to the conclusion that of course fire is dangerous and endangers lives. The investigator, however, must approach this objectively and assess whether there really was a risk to life in the circumstances specific to the case.

Conclusion: Getting Worse or Better? 

As discussed briefly here, there are concerns in fire cases as to whether the charging is appropriate, whether the correct person has been arrested, or even whether a crime of arson has been committed at all.  

The problems aren’t new but the push for quality from the Forensic Regulator has put a focus on fire investigation.  I have seen an overall improvement in methodology, data gathering, scene notes and scene photographs in recent years – these are critical components allowing a proper independent review at the end of the process.  Also, the historic and inappropriate use of “in my opinion this was a deliberate fire” in fire reports is showing signs of finally starting to wane.  Whether a fire was deliberate is an issue of intent and for the jury to decide, not something a fire investigator should be addressing.  

But this is not all cases.  We are still seeing cases with fire investigators make early determinations without supporting evidence, including in some with no scene notes, no photographs, and no excavation of the scene. Opinions are still being made about accelerant use based on a dog or device response without the essential laboratory confirmation.  Charges of intent or recklessness carry significant prison time, yet the standard of investigation applied to support these charges can be far below the standard of practice set out in various authoritative texts.  

From an independent expert perspective, it is essential in contested fire cases to seek an independent review for the reasons outlined above.  If you have a case you want to talk about, get in touch with one of our fire experts, any of whom will be happy to advise you on the best course of action.