I am just flicking through July's copy of HSM magazine and my eye caught the headline

"Changes to construction site scaffolding regulations; Are you safe?"

The article then goes on to state

"In addition to this there have been several changes in LEGISLATION since 2005 affecting the scaffolding industry in order to make construction sites a safer place to work. In late 2010 the British Standards Institution formally withdrew BS 5793 and replaced it........."

Have I missed something here?

Guidance notes are NOT admissible in court unless used by an expert

WAHR are not mentioned once in this full page article!

WOOOOOOOOOOOOOO (holds handbag like a squirrel holding a nazelnut to his mouth pose)

Maybe you are an "expert"? Only going on what the HSE say themselves (See link below)

http://www.hse.gov.uk/en...ourt/physical-public.htm

Thanks for your apology.....I like being factually correct when I post ;-)

1st = I didnt say guidance notes couldnt be used in a court

2nd = Just because you were Cracker/Frost/Morse and successfully prosecuted a defendant it doesnt mean that you were following correct procedures.
I have been to observe health and safety cases at my local magistrates court and what I witnessed was a joke, the only person who knew anything about H&S law was the prosecuting enforcing officer (this includes the defendents solicitor, and the justices clerk who was advising the magistrates) so I am not surprised that you were successful in getting a conviction. "Ultra vires" and all that.

3rd = I didnt say inspectors were "experts" either (I just stating that you may have been, hence the use of the question mark)

Is the hot Weather getting to people? - please also see the thread on Pregnant workers. Think we all need to have a cold dink take a deep breath and remember we are supposed to be professional people.

Brian

We cant keep it civil Mr.Mod as we are discussing criminal law.....dont you know owt.

Clairel - I hope I havent offended you in any way if I have I apologise.

Im off out on site now so wont be playing any longer today!!!

quote=brian hagyard]Is the hot Weather getting to people? - please also see the thread on Pregnant workers. Think we all need to have a cold dink take a deep breath and remember we are supposed to be professional people.

Brian

This topic has been re-instated after consideration by the moderating team. Forum users should remember that after moderating action some posts lose their context.

Therefore, it may be the case that some of the posts in this topic have been hidden for that reason. Users are also asked to remember forum rule 2 when using these forums.

As my previous post is not viewable the following is from the HEALTH AND SAFETY EXECUTIVE WEBPAGE (ENFORCEMENT GUIDE)

http://www.hse.gov.uk/en...ical-public.htm#P18_2902

Approved Codes of Practice and Guidance Notes
4. Where documents referred to in Regulations set out standards, etc., which the Regulations make mandatory, non-compliance with them will constitute a breach of the Regulations. There should be no difficulty in getting such documents accepted by the court, although it may on occasion be necessary to prove that the document in court is indeed the one referred to in the Regulations. A Stationery Office copy would meet such a requirement.

5. Approved Codes of Practice are admissible in evidence where they are relevant. 9 The notice of approval of the Code specifies those provisions on which the code gives guidance, and the expert witness should also make reference to this.

6. Guidance is not admissible unless introduced by an expert. You should still, however, produce an official copy in court.

NEBOSH (Ive passed diploma and certificate) and IOSH (managing safely) teach that guidance notes have no legal standing in a court so these are teaching falsehoods? Also there is no need for HSAW section 17 with regard to Acops I would have thought if guidance can be used.

Not wishing to get embroiled in an argument but, I think there is some confusion between a 'legal document' and document that can be used as evidence in court. I'm not sure there is a definitive answer to this particular issue.

For instance, the Corporate Manslaughter and Corporate Homicide Act 2007, specifically requires the Jury to consider 'whether there was any health and safety legislation that related to the alleged breach...' 'The Jury may also (3) (b) have regard to any health and safety guidance that relates to the alleged breach.'

'(5) In this section “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.'

No mention of 'expert' in the above.

For what it's worth. Our wiring regs (BS7671:2008 as amended) is not law BUT if we comply with it means that we will in all probability ccomply with the Electricity at Work Act 1989 (Law).

Yes I would say that applies to any best practice guidance (follow best practice and you wont be up before the beak in the first place). My problem is that I have been taught and have in black and white in numerous course notes and publications from NEBOSH & IOSH that

examples

"HSE Guidance is considered good practice but have no legal status."

"Industry Codes and Guides have no legal status."

A health and safety enforcing officer stated yesterday that all the above have been used to prosecute defendants in a court, even though the HSE website says that guidance cannot be used apart from expert witness use (again nothing about expert witness use in NEBOSH or IOSH notes).


Whats the point of Acops and section 17 of HSAW and why are Organisations that are teaching people with regard to health and safety stating that this guidance cannot be used in a court as evidence of a breach of statute,when looking at the general consensus on here, that this is false information.

Just in case less informed arre looking in - I know you really meant "regs" not act ;-)

I haven't read the article but my starting point is that there is nothing factually incorrect with the statement about "changes in legislation that affect construction". If I take the comments from Gary Briggs as correct then the statement about the British Standard (BS) being updated is also factually correct.

I think we all know that British Standards (BS) are produced through consensus groups of those who are competent to identify a required standard and thus set out the currently agreed best practice. They are drafted and issued by the UK government National Standards Body.
The BSI site clearly says “Standards themselves are voluntary and not regulatory: sometimes Standards work alongside regulations, helping organizations to comply with UK or EU regulations by setting out the Standards that will meet the regulations.” The electrical example from Zimmie demonstrates this very clearly.
So it is correct to say that they have “no legal status” but that fact does not prevent them being referred to in court. We have been given an example of where they were used to support a prosecution where a legal duty was not met and equally one can choose to demonstrate that what one has done is as good as or better than the standard. However, given where the standards come from and how they are produced, agreed and drafted one might reasonably expect that a question might be posed as to whether any relevant standards exist and then that a fair amount of weight be given to any BS. Perhaps that is why the term “quasi legal” often appears.
The slightly semantic discussion about “only used by experts” is a bit of a red herring is it not? That they can be used is the important bit surely. If a case warranted it, I am sure an “expert” would be found, whatever or whoever that may be.
p48

Grant, I hope you don't mind me saying that looks like a whole new topic to me,

p48

Clairel's experiences in Court mirror my own, but not I hasten to say as a prosecutor!

I have been involved in many cases at the Magistrates Courts & two at Crown Court (one as an expert witness for the defence) relating to fatal accidents.

The reality is that the Judge is the final arbiter as to what is admissible or not even though that could be the basis of a future appeal at a higher court.

I think that it is safe to renter this debate.
British Standards are not law; they are just guidelines, which is why they are not published for free. Similarly we refer to CIBSE guidance when looking at light levels in offices etc.
When interpreting legislation including H&S law a court may use as an interpretive aid not only the actual legislation itself but any other document which might help them work out what a piece of legalisation means. For example if they are looking at an old piece of legislation where the meaning of the words is unclear they may refer to a dictionary of the time to establish the meaning of those words. In some cases they have looked at Hansard where the question has been “what did parliament mean when they made this law”. So a British Standard can be introduced into a court as evidence that an activity was being carried out (or not being carried out) so far as reasonably practicable. But anything brought into court like this can be challenged, which is why the HSE guidance (for its own staff) says that technical evidence like this should only be introduced by an ‘expert’ who knows what they are doing and can stand up to cross examination.
An ACoP is special in that it cannot be challenged as just guidance but MUST be taken into account when looking at looking whether someone has complied with the legislation.
If someone is not following an ACoP the onus is on them to establish that what they are doing provides the same level compliance as someone following the ACoP.
See
Health and Safety at Work Act Section 17
Use of Approved Codes of Practice in criminal proceedings.
(2) Any provision of the Code Of Practice which appears to the court to be relevant to the requirement or prohibition alleged to have been contravened SHALL BE ADMISSIBLE in evidence in the proceedings; and if it is proved that there was at any material time a failure to observe any provision of the code which appears to the court to be relevant to any matter which it is necessary for the prosecution to prove in order to establish a contravention of that requirement or prohibition, that matter SHALL BE TAKEN AS PROVED unless the court is satisfied that the requirement or prohibition was in respect of that matter complied with otherwise than by way of observance of that provision of the code.

That’s what I think anyway.
I got my CMIOSH and NEBOSH Dip a few years ago then I did a Law 'A' level in evening classes and I realised that what is taught in the NEBOSH law curriculum is massively oversimplified, but adequate for the day to day stuff we do.