Rank: Forum user
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Hi All,
I'm doing an impact assessment on the upcoming reviews resulting from Prof. R Lofstedt's report.
Purely to save me some time, does anybody have a list of regulations that contain strict liability duties?
Many thanks, Jonathan
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Rank: Super forum user
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There is some confusion (as always with this government) about what they mean by strict liability. To be strict about it, strict liability is concept for civil law not criminal law. It means that if something goes wrong there is no need to prove that there was any fault by the defendant. An example of this is the interpretation of Reg 5 in PUWER in the case of Stark v Post Office. ‘Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.’ The courts ruled that this mean that if there was any injury caused work equipment then that was evidence that the equipment had not been maintained and the fact that they had a programme to maintain this equipment and done everything reasonably practicable to maintain this was not relevant. This is similar to the Employer’s Liability (Defective Equipment) Act 1969 which also creates a similar liability. This only applies to civil actions. The government and the courts have refused to apply the principle of strict liability to criminal matters. When they made their submissions to the European Court of Justice in relation to the use of the phrase ‘so far reasonably practicable’ they stated that to remove this from UK law would have created a strict liability in criminal law which is something that they would regard are unacceptable. Strict liability is different from absolute duty, where you have to do something, without any sort of ‘so far as reasonably practicable' qualification, for example under the Management of Health and Safety at Work Regulations you must produce a risk assessment, not just if it is reasonable practicable to do so. So what the government actually mean in relation to getting rid of strict labiality I am not really sure about.
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Rank: Super forum user
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Stark v Post Office is the example cited in the Lofsted Review.
The recommendation made in that respect is: "I recommend that regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions."
With all due respect, there would seem little point in attempting to anticipate the outcome of that proposed 2013 review (the poster's reference to an 'impact assessment') at this time, unless you happen to be directly engaged in realising the recommendation. The recommendation may never actually be realised by the powers that be.
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Rank: Forum user
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Thanks chaps...
Does anybody have any info on the proposed revokation of CAR2006 to be replaced by a new set of regs?
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Rank: Super forum user
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Strange but I was of the understanding that Stark v Post Office [2000] All ER (D) 276 the outcome was one of an 'absolute duty' to maintain equipment pursuant to reg 6(1) PUWER.
Strict liability is the norm for regulatory offences like health and safety, although not identified in the actual regulation or act, it is interpreted as such by the judge. The simple reasoning is that with a strict liability offence the prosecution is not required to show the 'guilty mind' (mens rea) but only that the accused committed the offence and of course the actus reus.
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Rank: Forum user
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I think that "Strict Liability" can arise from either criminal or civil law. Interestingly strict liability arose from health and safety standards in factories. The attempts to prove mens rea on the part of factory owners led to this concept being developed and it being its designation as “strict” as an offence can be caused even if those involved are not aware of all the facts. An example is selling alcohol to youngsters.
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Rank: Super forum user
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In 2007 (see http://www.shponline.co..../full/it-s-decision-time) the UK government went to the European Court specifically to make sure that strict liability was not applied to H&S law as the European Commission was asking. If it had been then if any employee was injured at work, the employer would be criminal liable and could be fined or imprisoned. The government has always insisted that any duty under the Health and Safety at Work Act and the regulations be a non-strict duty. There are a number of absolute duties where an employer must act for example they must procure a risk assessment under Reg 3 of Management of Health and Safety at Work Regulations but that is not then same as a strict liability, such as might exist under civil action under the Ryland’s v Fletcher rules or the vicarious liability that exists for an employer for the acts and omissions of their employees.
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Rank: Forum user
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The 2007 case was specifically about section 2 HSWA and the use of "reasonably practicable". The origin of this stems fro the differences in legal practice between the UK and the rest of Europe. Generally speaking, most European countries have an inquisitorial legal system where the law is written as an absolute duty and an investigating magistrate or judge will then determine the scale of the non-compliance - this is where their "reasonably practicable" is exercised whilst ours is written into the primary legislation.
As it stands, a significant amount of H&S regulations in the UK are strict liability provision - certainly most of PUWER, LOLER, workplace and management regs are, i.e. anything not qualified with reasonable practicability or having some sort of statutory defence.
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Rank: Super forum user
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Ok strict liability v absolute duty! What strict liabilities (absolute duties) was Cameron talking about getting rid of and what would the consequences be? We could find ourselves in the situation that if ALL H&S legislation was qualified as ‘so far as is reasonably practicable’ you could find that most things were unenforceable. I am looking at the recent ‘Lancashire Roofer’ case (see the current forum. He could argue that complying with the WAHL regs was not reasonably practicable in his case and he could have gotten away scot free! Of course this would set up a another confrontation with Europe, but perhaps that is what our friends want, an excuse to leave the EU drop all employee protection legalisation and get us competing with China and India on level playing field.
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Rank: Forum user
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Yes, the roofer could have argued that but with the concept of "reasonable practicability" also comes a reverse burden on the defence. Once the prosecution has established a prima facie case that there has been a breach, the burden is placed on the defendant to demonstrate (on a balance of probabilities) that they had done all that was reasonably practicable - this is contained in s40 HSWA.
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Rank: Super forum user
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With respect, s40 does not infer 'on a balance of probabilities' which is in fact a civil law doctrine. Health and safety regulations are criminal law offences and must be proved beyond all reasonable doubt. With s40 the accused must prove that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.
The only difference with a strict liability (and absolute duty) offence to other criminal offences there is no need to prove a guilty mind (mens rea) because most health and safety offences are as a result of an omission as opposed to an act. The only exceptions being common law gross negligent manslaughter and statute law corporate manslaughter, which can both be committed by act or omission.
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Rank: Forum user
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RayRapp, Case law [R v Carr-Briant, 1943, KB 607] has established that in any criminal proceedings, where there is a burden of proof on the accused, then the standard is less than that on the prosecution and is "on the balance of probabilities".
In civil proceedings the standard is the same for all parties and is on the balance of probabilities.
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Rank: Forum user
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edwardh beat me to it - as he says when the burden is on the defendant, they only have to meet the balance of probabilities test.
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Rank: Super forum user
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Edward, thank you for bringing the aforementioned citation to my notice, I apologise to myles for correcting his previous post. You live and learn.
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Rank: Super forum user
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We are getting confused about strict liability - These offences are defined such that if an offence occurs then the employer, feasor etc are guilty ie there is no defence to the breach. Defective equipment is one of the most obvious changes made such that employers were guilty of an offence if tools or equipment failed. Environmental law particularly has a number of strict liability offences such as spillage even where it was the result of a criminal action.
In all honesty the govt fails to recognise that stict liability is not an issue in the UK but it is under continental law in many countries where the fact of an accident means that an offence has been committed by the employer. I think Loestedt has got himself confused and thus one has to question his advice or the misunderstanding is being deliberately fostered!!
Bob
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Rank: Super forum user
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boblewis wrote:the misunderstanding is being deliberately fostered!!
Bob You may have the nub of it there, Bob. All part of the Witch Hunt.
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Rank: Super forum user
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Ron
Nowt can beat some good old construction cynics methinks!!!
It is concerning though that so little understanding exists of such an important aspect of legislation. In my day we had law lecturers teaching us law and such definitions were clearly thrust into sometimes unwilling brains! It seems that politicians, civil servants and many others do not understand such a phrase.
Banging a drum again
Bob
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