Unit A 3 Criminal Law Flashcards
Statute Law and Framework
Written & Codified laws established by Parliament
Comprises Acts of Parliament (primary legislation) supported by Regulations (delegated legislation)
Consultative and Policy Documents:
Green paper – statement of intent
White paper – statement of policy
Acts of Parliament – Primary legislation
An intended Act is termed a bill-processed through the House of Commons and then the House of Lords: First reading Second reading Committee Report stage Third reading Royal assent
Standards of Compliance
Absolute:
Compliance mus t be achieved
Summers v Frost 1955
So far as is practicable:
Stricter standard - if it is technically possible in light of current knowledge and best practice, then it must be done
Asset v K & L Steel Founders 1953
So far as is ‘reasonably practicable:
Degree of risk must be balanced against the cost necessary to combat it
Edwards v NCB1949 (quantum of risk test)
Criminal Law
Sanctions (Fines, prison):
Imposed on a person/organisation brought by the s tate Contravention of HSWA or regulations
Prosecution by HSE/Local Authority Statute/Common law-source of criminal liability e.g: HSWA1974 is statute law used in criminal law Mans laughter is common law us ed in criminal law
Burden of proof:
Prosecution to prove guilt beyond reasonable doubt
Liability: Strict, Fault and No Fault
Criminal liability:
Mens rea (the guilty mind – intention) Actus reus (act or omission)
Strict liability:
Requires only the Actus reus
Does not require ‘intention’ to be proven
Most H&S offences are strict liability offences Fault liability – Civil law:
Prove negligence before damages awarded
No FaultLiability:
Social security benefits
Worker’s compensation schemes ?
The Objectives of HSWA
General purposes of the Act:
Securing the health, s afety and welfare of persons at work
Protecting others from risks arising from work activities
Controlling the us e and storage of explosive or dangerous substances Establishes the Health and Safety Executive (HSE)
HSWA S40 - Burden of Proof
Onus of Proof (section 40 HSWA 1974):
Doctrine of English Law
Innocent until proven guilty revers ed
Under safety prosecutions the burden of proving that the necessary standard has been met may fall upon the defendant
HSWAS2(1)-Duties of Employers to Employees
“It SHALL be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees .
HSWAS2(2)-Duties of Employers to Employees
a) The provision and maintenance of plant and systems of work
b) Safety and absence of risk to health in connection to us e, handling, storage, trans port of articles and substances
c) The provision of information, training/supervision to ensure the health and safety at work of the employees
d) The place of work under the employer’s control including the maintenance of acces s /egres s
e) The provision/maintenance of a working environment for employees as regards risks to health
HSWA S2 - Further Duties of Employers to Employees
Safety Policy (2.3): Employers who employ > 5employees to prepare a written statement of their safety policy
Consultation(2.4, 2.6, 2.7):
Employers , when requested by safety representatives appointed by TU, to set up a safety committee - with a function to keep health and safety measures under review
HSWA S3(1) - Duties of Employers /Self employed to non employees
“It Shall be the duty of every employer to conduct his undertaking in such a way as to ensure, s o far as is reasonably practicable, that persons not in his employment who may be affected are not thereby expos ed to risks to their health and safety.”
HSWA S4 - Duties of persons concerned with premises
Section 4 gives duties to the controller of the premises
Anyone in control of premises or plant used by persons not in their employment should ensure:
Safe acces s and egres s to premis es and plant, s o far as is reas onably practicable
That plant or substances in the premises , or provided for their us e, are safe and without risk to health, s o far as is reasonably practicable
HSWA S6 - Duties of designers , manufacturers , importers , suppliers & installers
Section 6 Places a duty on those who make, supply, design or import anything for us e at work to ensure,
so far as is reasonably practicable, that the article or
substance is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work
HSWA S7 - Duties of employees at work
a) 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
b) Co-operate with the employers so far is is necessary to enable that duty or requirement to be performed or complied with
HSWA S8 - Duties of all persons
Not to intentionally or recklessly interfere with or
misuse anything provided in the interests of health, safety and welfare
HSWA S9 - Charges by employer
Prohibits an employer from levying, or from allowing to be levied any charges for anything done or provided for by H&S legis lation (e.g. PPE)
HSWA (S10 to S14) HSC & HSE
S10 - Establishment of executive
S11 - Functions of the executive
S12 - Control of the executive by Secretary of State
S13 - Powers of the executive
S14 - Power of the commis s ion to direct investigations
HSWA (S15 to S17) H&S regulations and ACOPS
S15- H&S regulation
S16 - ACOPS
S17 - Us e of ACOPS in criminal proceedings
HSWA (S18 to 26) Enforcement
S18 - Authorities res ponsible for enforcement
S19 - Appointment of inspectors
S20 - Powers of ins pectors
S21 - Improvement notices
S22 - Prohibition notices
S23 - Provisions supplementary to 21 & 22
S24-Appeals to21&22
S25- Powers to deal with imminent danger
S26 - Indemnity of inspectors
HSWA (S33toS42) Provisions as to offences
S33 - Offences S34 - Extension of time for summary proceedings S35- Venue S36-Offences duetofaultofotherperson S37 - Offences by body corporate S38 - Restrictions on institution proceedings S39 - Prosecution by inspectors S40-Onus ofproof S41 -Evidence S42 -Forfeiture
HSWA S20 - Powers of Enforcement Officers
Enter premises at any reasonable time
Take a police constable if required
Examinations /inves tigations
Direct that premises are left undisturbed Take measurements/photos/samples etc
Retain articles /substances for examination/evidence Require questions to be answered
Require production/copies of necessary documents
Obligations of enforcing officers
Duty to give information to employees or their
representatives Duty not to disclose information (Section 28)
Enforcement Notices
ImprovementNotice (Section 21):
Contravention of the law or repetition - Inspector may
serve an Improvement Notice
ProhibitionNotice (Section22):
Maybe served if activities carried out by or under the control of a person are, or may have, a risk of serious personal injury
Appeals
Appeals againstNotices (Section24): Must be made to an Employment Tribunal within 21 days of the issue of the notice
Reasons:
Wrong legal interpretation by inspector
Inspector exceeded his powers
Breach admitted but remedy not achievableBreach is not significant
Offences and Penalties
3 types of offence: Summary offence (Magistrates court) Indictable offence (Crown court) Triable either way (most H&S offences )
Offences Committed by Body Corporate and Individuals
Offences due to the fault of the other person:
Section 36 allows the prosecution of a person who by their ‘default’ allows another to commit an offence
Offences by Bodies Corporate:
Section 37 covers offences committed by the ‘body corporate’ - the company, organisation, local authority or by individual people
MHSW Regulations 1999 (3 to 8)
Reg 3– Risk assessment Reg 4 – Principles of prevention Reg 5– H&S arrangements Reg 6 – Health surveillance Reg 7 – Competent assistance Reg 8 – Serious and imminent danger
MHSW Regulations 1999 (9 to 14)
Reg 9 – Contact with external agencies Reg 10 – Info for employees Reg 11 – Co-operation and co-ordination Reg 12 – Info for other employers Reg 13 – Capabilities and training Reg 14 – Employees ’ duties
MHSW Regulations 1999 (15to 19)
Reg 15– Temporary workers
Reg 16 – New and expectant mothers - alter condition Reg 17 – New and expectant mothers – night work
Reg 18 – New and expectant mothers – notification Reg 19 – Young persons
Corporate Mans laughter
Identification principle (Directing mind)
Indictable only
Directing mind not required
Person dies as a result of the way in which an
organisation’s activities were managed or organised by senior management
Gross breach of relevant duty of care
Corporate Mans laughter and Corporate Homicide Act - Aims
To make it easier to prosecute companies where there are gross failings in the management of health and safety and they led to a death Designed to complement existing health and safety legislation s o the offence does not impose new regulations on
businesses
Treats all companies equally, regardless of size
Corporate Mans laughter and Corporate Homicide Act - When to convict?
Failings in management systems
Failing at senior level
Cultural issues : attitudes , custom and practice Gross negligence: standards far below what was reasonably expected
Failure to manage or organise caused death
