A9 CRIMINAL LAW

Question 1

9.1 The health and safety at work regulation etc. act 1974 and the management of health and safety at work regulations 1999

Answer 1

…….

Question 2

PURPOSE, ROLE, STRUCTURE, APPLICATION AND STATUS OF APPROVED CODES OF PRACTICE AND HSE GUIDANCE NOTES

Answer 2

….

Question 3

What is the legal status of HSE guidance materials.

Answer 3

Purely advisory. No legal status

Question 4

What is the legal status of ACOPS?

Answer 4

1. Special legal status.
2. Give guidance of how to comply with duties set out in regulations.
3. May be used as evidence.
4. Defendant must show other means of compliance that was as least as effective.

Question 5

PROCEDURE FOR MAKING ACOP

Answer 5

……..

Question 6

9. 3 ENFORCEMENT OF HEALTH AND SAFETY LAW
   - IDENTIFICATION OF AUTHORITIES EMPOWERED TO ENFORCE H&S LEGISLATION
   - DIVISION OF RESPONSIBILITIES BETWEEN ENFORCING AUTHORITIES
   - POWERS OF ENFORCING AUTHORITIES AND THEIR INSPECTORS (HASAW 1974 20-25)
   - OBLIGATIONS OF ENFORCING OFFICERS: DUTY TO GIVE INFORMATION TO EMPLOYEES OR THEIR REPRESENTATIVES, DUTY NOT TO DISCLOSE INFORMATION (HASAW 1974 28)
   - OFFENCES AND MAXIMUMPENALTIES UNDER THE LAW (HASAW 1974 33)
   - OFFENCES FOR WHICH IMPRISONMENT IS, AND IS NOT, A FORM OF SANCTION

Answer 6

1

Question 7

OPTIONS FOR ENFORCEMENT ACTION

SUMMARY

INDICTABKE

TRIABLE EITHER WAY OFFENCES

FORMAL CAUTIONS

ENFORCEMENT NOTICES - TYPES, PURPOSE, STATUS CONDITIONS BEING SERVED, GROUND FOR APPEAL, APPEAL PROCEDURES, EFFECTS OF APPEAL (HASAWA 1974 21-24 AND 39)

Answer 7

0

Question 8

What is the difference between and improvement notice and a prohibition notice?

Answer 8

Prohibition notice:
Served in anticipation of danger when inspector thinks imminent danger exists or will be created in future.

Improvement notice:
Served where contravention of H&S law is taking place or has taken place and is likely to continue (but is not necessarily dangerous).

Question 9

PRINCIPLE OF ENFORCEMENT BY SAFETY CASE

CONTROL OF MAJOR ACCIDENTS

BY REGISTRATION FO INDIVIDUALS EG GAS SAFETY AND BY LICENSING ASBESTORS

Answer 9

1

Question 10

THE EFFECT ON CRIMINAL PROCEEDINGS OF SECTION 40 OF THE HEALTH AND SAFETY AT WORK ACT

Answer 10

1

Question 11

THE APPLICATION OF COMMON LAW MANSLAUGHER AND CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE ACT 2007 TO WORK RELATED ACCIDENT/INCIDENTS

LEGAL CRITERIA FOR PROSECUTION, ENFORCEMENT AND PROSECUTION RESPONSIBILITIES

Answer 11

1

Question 12

Armour v Skeen 1997

Answer 12

Section 37 - Personal Liability of executives -personal duty to prepare a written SSOW. HSAWA 1974 sec 37 1st person procecuted

Individual Failure – not a ‘Director’ within meaning of s37, but was within scope of ‘manager…or similar officer’. It was his individual failure to provide the SSW. HSWA S37

While repairing a bridge over the river Clyde a workman fell to his death. Mr Armour the director of Roads was prosecuted under section 37(1) which places responsibilities on Directors. Managers & Company Secretaries for breaches of statutory duty. Failed to prepare a written policy. Personal duty to prepare a written SSOW

• A work man fell to his death whilst repainting a road bridge
• Armour was director of roads for strathclyde council
• Should have produced SSOW / Safe policy
• Did not
• As was director / senior manager prosecuted under sec 37 HSWA 1974

*

Question 13

R v Associated Octel Co Ltd 1996

Answer 13

S2 & S3 HASAWA

Large fire which put AO’s and fire service at risk, could have been avoided if Risk assessment done. Chemical plant – annual maintenance by contractor – acetone, vapour light bulb broke causing fire.

• An employee of a contractor badly burned while conducting repairs to a chemical tank.
• The Contractor was prosecuted under s2 for the injury to their employee
• Octel were prosecuted under s3 - the maintenance of the tank was part of their undertaking – that it was being carried out by a contractor was irrelevant, as it was on their site so it was still under their control

Question 14

R v British Steel plc 1995

Answer 14

S3 - Persons not in its employment who might be affected thereby not exposed to risks to H&S

Reposition a section of steel platform – cut away supports but neglected to support it leaving it unstable. One man stood on it and the platform fell crushing the other worker.

Question 15

R v HTM 2006

Answer 15

Foreseeability & section 2(1) HASAWA

Overhead power cables on a trunk road A66. Safe movement of lighting towers. Failed to do all that was reasonably practicable to provide a safe system of work and adequate information, instruction, training and supervision.

Question 16

R v Nelson Group 1998

Answer 16

section 3(1) HASAWA

Probability that everything reasonably practicable had been done that could be done to avoid an unsealed gas pipe being left in a customer’s house.

• A properly trained and competent gas fitter left a fitting in a dangerous condition
• It was held that an isolated act of negligence by an otherwise completely competent employee did not render the employer liable
• Note – this defence is effectively closed by MHSWR 1999 Reg 21 – ‘it will not be a defence for an employer to argue that the contravention was due to the act or default of an employee… or an person appointed as a H&S Assistant under Reg7

Question 17

R v P (2007)

Answer 17

Section 37 – neglect does not necessarily require knowledge on the defendant’s part & can include the situation where they ought to have been aware of those circumstances.

Six year old boy thrown from forklift truck when collided with second truck which was riding reel (carrying an unsecured newspaper reel on top of two secured reels). Was obviously dangerous but practice was commonplace. Breach arisen out of his consent, connivance or were attributable to his neglect.

Question 18

R v Swan Hunter 1979

Answer 18

DUTY OF CARE UNDER HASAWA SECTIONS 2(2)(c) AND 3(1) DUTY TO CONTRACTORS

HMS Glasgow was under construction at Tyneside when an open oxygen valve left a room oxygen enriched, when welding started a fire broke out. Convicted under HSAWA sec 2(2) & 2(c) and HASAWA Sec 3(1) Relevant information. Blue book of information provided to employees but not contractors

Question 19

Levels of Duty - Regulations

Answer 19

Enabling Act (allows the Secretary of State to make further laws (known as regulations) without the need to pass another Act of Parliament)

It is a criminal offence to breach a regulation and any breaches may result in enforcement action

Aim to help employers to set goals, but leave them free to decide how to control hazards and risks which they identify

Question 20

Levels of Duty - ACOPs

Answer 20

Produced for most sets of regulations by the HSC

Attempts to give more details on the requirements of the regulations

Quasi-legal (Highway Code to the Road Traffic Act)

ACOPs generally are only directly legally binding if:-

The regulations or Act indicates that they are e.g. The Safety Signs and Signals Regs (Schedule 2) specify British Standard Codes of Practice for alternative hand signals; or

They are referred to in an Enforcement Notice

Question 21

Levels of Duty - Guidance

Answer 21

No formal legal standing

Legal and best practice

Issued by the HSC and/or the HSE to cover the technical aspects of H&S regualtions

Question 22

HASAWA 74 - Role of the HSE

Answer 22

• Advises on the development of regulations;
• Enforces health and safety regulations;
• Provides information to organisations (ACOPs, guidance notes, leaflets and other publications along with accident and ill-health statistics);
• Launches national health and safety campaigns on specific topics;
• Undertakes accident and other investigations;
• Offers advice to employers and others on statutory duties;
• Takes enforcement action; and
• Instigates criminal proceedings and publicises organisations that receive enforcement notices

Question 23

HASAWA 74 - Regulations

Answer 23

• State the law
• Often implement EU directives
• Breaches are criminal offences possibly leading to enforcement action
• Describe the minimum health and safety standards that need to be achieved
• Usually apply across all organisations but sometimes apply to specific industries

Question 24

HASAWA 74 - Approved Codes of Practice

Answer 24

• Supplementary practical interpretation of regualtions that gives more detail on the regulatory requirements
• Special legal status - quasi legal because it may be possible to comply with regulations by some other more effective practice
• ACOPs are legally binding if the particular regulations indicate that they or if they are quoted in an Enforcement Notice

Question 25

Enforcement - Powers of Inspectors

Answer 25

• Enter premises at any reasonable time, accompanied by a police officer if necessary;
• Examine, investigate and require the premises to be left undisturbed;
• Access to all records and other relevant documents;
• Take samples, photographs and, if necessary, dismantle and remove equipment or substances;
• Seize, destroy or render harmless any substance or article;
• Take statements;
• Issue improvement and prohibition notices and, possibly, a formal caution; and
• Initiate prosecutions

Question 26

Enforcement - Improvement Notice

Answer 26

Issued for a specific breach of the law.

Appeal within 21 days to an Employment Tribunal - notice suspended until appeal is heard or withdrawn

Question 27

Enforcement - Prohibition Notice

Answer 27

Issued to halt an activity that could lead to a serious injury

Appeal within 21 days to an Employment Tribunal - notice is NOT suspended

Deferred prohibition notice - stops the work activity within a specified time limit

Question 28

Enforcement - Penalties for Summary Offences

Answer 28

For most H&S offences the fine would be up to £20k and / or up to 12 months imprisonment.

Up to five years disqualification for convicted directors

Question 29

Enforcement - Penalties for Indictable Offences

Answer 29

Unlimited fines for all health and safety offences

Up to two years imprisonment for all health and safety offences

Up to 15 years disqualification for convicted directors

Question 30

Enforcement - Work Related Deaths

Answer 30

• Investigated by the police initially to ascertain whether a charge of manslaughter (culpable homicide in Scotland) or corporate manslaughter is appropriate.
• If there are no such charges, the HSE or Local Authority continues the investigation.