ND Unit A - Element A9: Criminal Law Flashcards
Outline the circumstances and legal ruling (ratio decidendi ) in R v. Swan Hunter Shipbuilders and Another (1982).
A fire broke out on board a ship that was under construction by Swan Hunter Ltd. The fire was intense because the atmosphere inside the vessel had become oxygen-enriched, and eight men were killed. The oxygen had escaped from a hose left by an employee of a firm of sub-contractors. Swan Hunter Ltd had distributed to their own employees a book of rules for the safe use of oxygen equipment, but this was not distributed to sub-contractors’ employees, except on request.
The Court of Appeal held that if, to ensure a safe system of work for an employer’s own employees, it was necessary for the employer to provide persons other than his employees with information and instruction as to potential dangers, then he was under a duty to do so. This is limited by what is reasonably practicable.
Outline the circumstances and legal ruling (ratio decidendi ) in R v. Associated Octel Ltd (1996).
Associated Octel engaged some contractors to carry out repairs to a tank during a shut-down period. A permit to work was issued by the defendant, but it proved to be inadequate and was not monitored. A contractor took a flammable liquid into the tank to clean the inner surface. However, a flash fire developed and the contractor was seriously burnt. The House of Lords held that if an employer engages a contractor who works on his or her premises then the employer, subject to reasonable practicability, must ensure the contractor’s health and safety. The House of Lords appeal was concerned with the definition of the term “undertaking”, which effectively includes any work carried out on the employer’s premises.
Who is the duty holder under Section 4 of HSWA?
Persons who use non-domestic premises made available as a place of work, or where they may use plant or substances and where they have to any extent control of the premises, access, egress or any plant or substance
What are the duties of manufacturers, importers and suppliers in respect of a substance for use at work?
The duties are to:
• Ensure so far as is reasonably practicable that the substance will be safe and without risk to health when it is being used, handled, processed, stored or transported.
• Carry out any necessary testing and examination.
• To ensure that persons supplied with the substance are provided with adequate information regarding any risk, results of any tests carried out and precautions for safe use.
• Ensure that persons supplied with the substance are provided with any revisions of the information.
• Carry out or arrange for necessary research to eliminate or minimise risk to health and safety, so far as is reasonably practicable.
Who is the duty holder under Section 8 of HSWA and what is unusual about this section?
All persons are duty holders under Section 8. Unlike most duties under the Act, a prosecution would have to prove the guilty mind, i.e. intentional or reckless behaviour.
Under the HSWA, what are the employee’s duties?
Section 7 of the Act states that it shall be the duty of every employee while at work:
• To take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work.
• As regards any duty or requirement imposed on his employer or any other person by, or under any of, the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
In Edwards v. National Coal Board (1949) the judge said that a balance had to be struck in deciding whether it would have been reasonably practicable to have taken the precaution of providing supports for the section of road that collapsed. In this particular case the risk was not an insignificant one (it had led to the death of a miner), and the costs of making safe should have been applied.
List the main requirements of the MHSWR 1999.
The Management of Health and Safety at Work Regulations 1999 place the following duties on employers:
Reg 3 - to make a suitable and sufficient risk assessment and to introduce suitable control measures,
Reg 7 - to have access to competent health and safety assistance,
to establish procedures for serious and imminent danger,
Reg 9 - to make suitable arrangements for contact with external services,
Reg 10 & Reg 12 - to provide suitable information to employees and visiting workers, to provide adequate health and safety training for employees.
- Does non-compliance with an ACoP constitute a
criminal offence?
No. However, since each ACoP is associated with an Act
or Regulations, then not complying with an ACoP may be used as evidence of not complying with the section of
the Act or the Regulation. A good analogy is the Highway Code. Driving on the right-hand side of the road is a breach of the Highway Code. If you choose to do this then the police might prosecute you for driving without due care and attention, which constitutes a breach of the Road Traffic Act.
- Does HSE guidance have any legal significance?
It has no direct significance, but may be used in court as
evidence of freely available advice on what constitutes good practice.
- List the powers of an inspector as defined by
Section 20 of HSWA.
Powers of an inspector:
• He may, at any reasonable time or at any time where he is of the opinion that a dangerous state exists, enter any premises which he has reason to believe it is necessary for him to enter, in order to exercise his powers.
• He may take a police officer with him if he has reasonable cause to believe he may meet with serious obstruction in the execution of his duty. He may also take with him any other person duly authorised by his enforcing authority, and any equipment or materials required for any purpose for which the power of entry is being exercised.
• He may make any necessary examinations and
investigations.
• As regards any premises which he has power to enter,
he may direct - and these directions must be obeyed - that those premises or part of them or anything in them, e.g. machinery, shall be left undisturbed for so long as is reasonably necessary for the purpose of investigation or examination.
• The inspector may take photographs and such
measurements as he considers necessary. He may also take samples, e.g. dust, of any articles or substances found in any premises he has entered and of the atmosphere in or around the premises.
• In the case of any article or substance that he decides is likely to cause danger to health and safety, he may cause it to be dismantled or subjected to any process or test. (In certain extreme cases, he has the power to destroy articles, etc.)
• He may retain any article or substance for such time as is necessary for examination, or so as to ensure it is available for use as evidence in any court proceedings.
He may require any person (and this requirement
extends outside a place of work), whom he has reasonable grounds for believing may be able to give information relevant to any examination or investigation he is concerned with, to answer such
questions as the inspector thinks fit to ask, and to sign a declaration of the truth of his answers. The person being questioned may have someone nominated by him present, as may the inspector.
• He may require the production of, inspect and take copies of any books or documents (or any entries) that are required by regulations to be kept. The inspector may also see and take copies of any other documents or books, and he may require any person to afford
him facilities and assistance with respect to any matter within that person’s control.
• He may exercise any other powers necessary to enforce relevant health and safety law.
- Following an accident at work, how might the inspector’s investigation aid civil proceedings?
Under Section 28(9) of HSWA 1974 (as amended)
anyone who may be a party to civil proceedings (employer, employee or person in control of premises) may obtain from an inspector a written statement of relevant factual information obtained by the inspector in exercise of his powers.
- Under what circumstances may an inspector divulge information obtained?
An inspector may divulge information in the following
circumstances:
• For the purposes of carrying out his functions.
• For the purposes of any legal proceedings, or any investigation or enquiry at the request of the Executive.
• With the relevant consent of the person who provides the information or of the person in control of the premises where the statement was obtained.
• A statement of facts obtained in the course of
exercising his powers to a party involved in civil proceedings.
• For the purposes of providing employees or their
representatives with information about matters affecting their health and safety and welfare. This relates to information obtained by an inspector during the course of an investigation. The information will be factual about what he has found and what action, if any, he intends to take. Any information so supplied to an employee must be equally given to his employer.
- Which health and safety offences can only be heard summarily?
- Contravening a requirement imposed under HSWA, Section 14 (power of the Health and Safety Executive (HSE) to order an investigation).
- Intentionally obstructing an inspector.
- Falsely pretending to be an inspector.
- Under what circumstances can an inspector issue
a Prohibition Notice?
It is issued where the inspector is of the opinion that the activities involve, or may involve, the risk of serious personal injury.
