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Posted By Stephen D. Clarke
Reading through the new act and explanatory notes it appears that juries can consider H&S guidance when deciding how serious the breach of duty of care has been and whether the breach amounts to a gross management failure. Is this something new as in the past I seem to remember that ACoPs could be considered in court but not guidance? I'd be interested in the views of any legal experts.
cheers
Steve
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Posted By Dave Merchant
The problem is that there remain many SIs without an ACOP (Work at Height, etc.) and so there's no other "public sector" position on best practice to use in the case. It wouldn't be good practice to measure against commercial guidance (from a trade body, etc.) as the defence can argue the policy has bias or only reflects one possible route to SSOW. The 'advantage' of HSE or LA guidance is it's intentionally written to be as vague and unbiased as possible, so can be used as a comparative measure no matter who the defendant is.
8.3(b) doesn't make following HSE guidance (or not) carry any implicit weight in law other than comparatively for a jury to form a decision on 'gross breach of duty'. This has always been the case - prosecution counsel can present expert testimony as to the 'typical' practices and policies in use, but failing to comply with such is not in itself an offence. A jury can't be expected to understand practices and guidance without them being presented, but 8.3(b) only requires them to weigh such evidence in their normal deliberations.
Reading 19.1 you can see that it's possible to be found guilty under the Act as a discrete judgement (i.e. without necessarily breaching a specific H+S law), in which case guidance could be used to show that the defendant was generally in breach of their duties without highlighting a technical failing through a specific regulation.
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Posted By Robert K Lewis
Steve
It does not have to be necessarily HSE guidance either if you think about it. The balance is strongly towards the prosecution if and when a charge is brought before the courts. Having said that though I do wonder if we will enter the realms of the current gross negligence manslaughter whereby an act is criminal if it is sufficiently reckless to be called criminal.
How serious does a breach have to be in order to be regarded as gross? Do two breaches in less serious areas equate to more than one more major breach? How does one define the point where the crossover occurs? Breaches do not have to be serious to allow a fatality to happen after all. Breaches can lead to accidents at that point the outcome is to a significant extent one of probabilities. But death can follow falls on the level.
If one then tries to look at the minds of the duty holders - Was there deliberate intention? - Most unlikely. Was there recklessness? - Brings us back to gross negligence definitions. What was the employee involvement? - Regulation 21 has been breached by current court ruling on A66 accident.
When one considers that the penalties available are all those available under HASAWA, including the Remediation Orders, one has to query the real benefit of the legislation. I am still unsure of the long term benefits.
Bob
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Posted By Stephen D. Clarke
Many thanks guys for your really helpful responses.
Steve
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Posted By Dave Merchant
Having worked through this in depth and tried to formulate a case where HASAWA fails but CMA succeeds, the conclusion we came to was that CMA's "benefit" is simply that it exists, and it provokes lots of excited ravings in the press, and so the Boys On the Board may finally pull their fingers out and fix their policies. Those that do were almost certainly in breach of existing legislation anyway, but a kick up the jacksie always helps, and CMA's press coverage can kick people with more expensive trousers.
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Posted By Karen Todd When I do court reports, I do refer to things published in guidance (e.g. have referred to HS(G) 155 and 156 in a STF case) as I feel it is useful for Counsel to know this information. If you look here: http://www.weightmans.co...ristol_city_council.aspx in Point 4 of the Judgement, although in this case it was an ACOP rather than say, guidance that was referred to. Regards, KT
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Posted By Karen Todd
To clarify - I am involved in civil cases, not criminal.
KT
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