1.3 Enforcement of The Law

13/10/2023, 11:59 1.
3 Enforcement of the law
1.3 Enforcement of the law
Site: Astutis Learning Campus Printed by: Leon Oosthuysen

Course: Home: DN1 - Workplace health and safety Date: Friday, 13 October 2023, 11:55 AM
Book: 1.3 Enforcement of the law
https://learning.astutis.com/mod/book/tool/print/index.php?id=379 1/27
13/10/2023, 11:59 1.3 Enforcement of the law
Table of contents
Enforcing authorities
Powers of enforcing authorities and inspectors
Disclosure of information
Enforcement action
National Local Authority Enforcement Code
Prosecution
Types of offences
Sentencing
Sentencing guidelines
Improvement notices
Prohibition notices
Appeals against enforcement notices
Cautions
Proving what is practicable
Learning check
Discovery learning
Enforcing authorities
The enforcement of health and safety depends upon the main activity undertaken at a place of work:
the HSE typically enforces at higher risk workplaces, such as construction sites
and factories;
the Office of Rail and Road (ORR) enforces on the railways;
Local authorities (usually Environmental Health Officers – EHOs) enforce at lower
risk premises such as retailers, offices and warehousing.
Responsibilities for enforcement are allocated under the Health and Safety (Enforcing Authority) Regulations 1998.
The main principles of the regulations are that:
responsibility for enforcement is allocated on the basis of main activity at the

premises
dual enforcement / duplication of effort is to be avoided
no self-inspection by enforcing authorities.
Premises enforced by local authorities are listed in Schedule 1 of the Health and Safety (Enforcing Authority)
Regulations and HSE enforced premises are found in Schedule 2.
Powers of enforcing authorities and inspectors
The Health and Safety Executive is allocated various powers under Section 13 of HASAWA. They're empowered to do
anything, other than borrow money, that is intended to facilitate the performance of its functions. For example:
entering into partnerships with government departments

establishing committees
commissioning research.
Section 14 of HASAWA gives the HSE the power to direct investigations or inquiries into any accident, occurrence,
situation or other matter.
Powers of inspectors
An authorised inspector may exercise the powers found in Section 20(2) of HASAWA within the field of responsibility
of the enforcing authority which appointed them. The powers are:
to enter any premises, as they see necessary, at any reasonable time

to take a constable with them if they have reasonable cause to apprehend any
serious obstruction
to take any other person authorised by the enforcing authority and any
equipment or materials required
to carry out an examination and investigation
direct that premises, or anything within them, shall be left undisturbed for as long
as is necessary for the examination or investigation
to take measurements and photographs and make recordings for the purpose of
any examination or investigation
to take samples of any articles or substances found in the premises and of the
atmosphere
require any dangerous article or substance to be dismantled or tested, but not so
as to damage or destroy it unless necessary.
The inspector is required to:
consult appropriate persons to determine what dangers may arise before

exercising the power
leave a notice giving particulars of the article or substance seized, with a
responsible person, or otherwise display it conspicuously
leave a portion of any sample with a responsible person, wherever practicable
take possession of any dangerous article or substance and detain it: for so long as
is necessary to examine it, to ensure that it is not tampered with, or to ensure that
it is available for use as evidence in any proceedings
interview any person they believe can give information relevant to any
examination or investigation and get them to sign a declaration of truth
to pose and receive written questions and answers
to require the production of, inspect, and take copies of, any relevant books or
documents
to require any person to provide facilities and assistance to enable them to
exercise their powers
any other power which is necessary for the purpose of carrying into effect any of
the relevant statutory provisions within their field of responsibility.
Section 25 – Power to deal with cause of imminent danger
Where, an inspector finds any article or substance which is a cause of imminent danger or serious personal injury, he
may seize it and cause it to be rendered harmless by destruction or otherwise.
Before any article or substance is rendered harmless the inspector shall, wherever practicable, take a sample and give
a suitably identified portion to a responsible person at the premises.
As soon as possible after seizing and rendering harmless any article or substance, the inspector must prepare and
sign a written report giving particulars of the circumstances in which the article or substance was seized and dealt
with.
A signed copy of the report should be given to a responsible person at the premises and (if different) the owner of the
article or substance. Where the name or address of the owner cannot be established the owners copy may be served
by giving it to the responsible person at the premises.
Explore more
Watch the below video from the HSE and answer the following questions:
1. What is the purpose of health and safety inspections?

2. Do HSE inspectors need to provide notice to visit a workplace?
3. What will an inspector do while at the workplace?
4. Is an inspector allowed to interview workers?
5. What might an inspector do if they realise that a law is being breached at a workplace?
Disclosure of information
Section 28 of HASAWA contains restrictions on disclosure of information by an inspector.
Inspectors must disclose certain information when it is necessary to do so for the purpose of assisting in keeping
persons employed at any premises adequately informed about matters affecting their health, safety and welfare.
The information may be disclosed directly to employees or via their safety representatives or representatives of
employee safety.
The information to be disclosed is factual information (for example: information derived from the analysis of samples)
obtained by them and which relates to premises where the employees work. In such a situation inspectors must not
only tell the employees the results, but also about any steps they will be taking to ensure the employer reduces the
hazard.
The information must also relate to any action they have taken, or propose to take, in connection with the workplace,
such as giving advice to the employer, issuing an improvement or prohibition notice, or taking legal proceedings. Any
information given to employees must also be given to the employer. Such information will not include any medical
information relating to particular individuals, except with their consent.
Inspectors would not normally disclose any information given to them voluntarily, unless such information leads to
action or investigation at the workplace and subsequent information emerges that needs disclosing to employees in
the interests of health, safety or welfare. Apart from the obligation to disclose information to employees, inspectors
are generally restricted from disclosing information obtained under their powers, except in the following
circumstances:
for the purposes of their functions

for the purpose of any legal proceedings or any investigations or inquiry held by
virtue of Section 14
with the relevant consent of a person required to give information relevant to an
inspector’s examination or investigation.
Disclosure of information by inspectors for civil proceedings
A further exception to the restrictions on the disclosure of information arises where a person may be party to civil
proceedings arising out of an accident, or other incident (this may be the claimant or the defendant).
In such circumstances, an inspector may give to the person concerned a written statement of relevant factual
information obtained by them in the exercise of their powers. The statement must be confined to facts observed by
the inspector and cannot include personal views, nor references to any information obtained indirectly, for example,
by hearsay.
Enforcement action
HSE enforcement policy statement
The HSE enforcement policy states that 'enforcement' has a wide meaning and applies to all dealings between
enforcing authorities and duty holders (employers, the self-employed, employees, manufacturers, suppliers, etc).
The purpose of enforcement is to:
ensure that duty holders take action to deal immediately with serious risks
promote and achieve sustained compliance with the law
ensure that duty holders who breach health and safety requirements are held to
account.
The following five principles of enforcement apply to both enforcement in particular cases, and the HSE’s
management of enforcement activities as a whole.
 Proportionality
 Targeting
 Consistency
 Transparency
 Accountability
HSE Enforcement Management Model (EMM)
Inspectors exercise professional judgement based on the circumstance of a particular case to determine the
appropriate course of enforcement action. The Enforcement Management Model (EMM) provides a framework of
guidance to help ensure consistency of approach and consideration of the business context.
The EMM provides a framework to help inspectors reach enforcement decisions and in particular with the principles
of proportionality, consistency and transparency. The EMM takes into account the actual risk present and the
seriousness of any regulatory breach which might be apparent.
The EMM is structured a seven step process as follows:
 Step 1 - Enforcement priorities
 Step 2 - Risk of serious injury
 Step 3 - Gap analysis
 Step 4 - Initial enforcement expectation
 Step 5 - Duty holder factors
 Step 6 - Strategic factors
 Step 7 - Enforcement conclusion
National Local Authority Enforcement Code
Following the Lofstedt report recommendation that the HSE be given a stronger role in directing local authority (LA)
health and safety enforcement activity, and the red tape challenge, the HSE has published the National Local
Authority Enforcement Code.
The Code has the legal status of guidance under section 18 of the Health and Safety at Work etc. Act and applies to
England, Wales and Scotland.
The Code provides direction to LAs on meeting their enforcement requirements, and reporting on compliance.
The Code adopts the same principles of enforcement as the HSE’s enforcement policy and as a consequence local
authorities should only proactively inspect premises with higher risks or where intelligence suggests that risks are not
being effectively managed.
Methods of enforcement
The enforcing authorities have a range of options available to secure compliance with the law and to ensure a
proportionate response to criminal offences. Inspectors may:
provide informal information, and advice, both face to face and in writing
serve improvement and prohibition notices
withdraw approvals, vary licence conditions or exemptions
issue simple (formal) cautions (England and Wales only)
prosecute.
Prosecution
In England and Wales the decision to proceed with a court case rests with the enforcing authorities who must use
discretion in deciding whether to bring a prosecution.
The decision of whether to prosecute should take account of the evidential stage and the relevant public interest
factors set down by the Director of Public Prosecutions in the Code for Crown Prosecutors. No prosecution may go
ahead unless the prosecutor finds there is sufficient evidence to provide a realistic prospect of conviction, and decides
that prosecution would be in the public interest.
The Code for Crown Prosecutors requires the decision to prosecute to be kept under continuous review, so that any
new facts or circumstances, in support of or undermining the prosecutions’ case, are taken into account in the
decision to continue or terminate the proceedings.
Where the circumstances warrant it and the evidence to support a case is available, enforcing authorities may
prosecute without prior warning or recourse to alternative sanctions.
Subject to the above, enforcing authorities should normally prosecute in the public interest where one or more of the
following circumstances apply:
death was a result of a breach of the legislation. (Sentencing guidelines regard

death from a criminal act as an aggravating feature of the offence. If there is
sufficient evidence for conviction, such cases should normally be brought before
the court. However, there will be occasions where the public interest does not
require a prosecution)
the gravity of an alleged offence, taken together with the seriousness of any
actual or potential harm, or the general record and approach of the offender
warrants it
there has been reckless disregard of health and safety requirements
there have been repeated breaches which give rise to significant risk, or
persistent and significant poor compliance
work has been carried out without, or in serious non-compliance with, an
appropriate licence or safety case
a duty holder’s standard of managing health and safety is found to be far below
what is required by health and safety law and to be giving rise to significant risk
there has been a failure to comply with an improvement or prohibition notice, or
there has been a repetition of a breach that was subject to a simple caution
false information has been supplied wilfully, or there has been intent to deceive,
in relation to a matter which gives rise to significant risk
inspectors have been intentionally obstructed in the lawful course of their duties.
Where inspectors are assaulted, enforcing authorities will seek police assistance, with a view to seeking the
prosecution of offenders.
Enforcing authorities should also consider prosecution, where following regulatory contact, one or more of the
following circumstances apply:
it is appropriate to draw attention to the need for compliance with the law and
conviction may deter others from similar failures
a breach which gives rise to significant risk has continued, despite relevant
warnings from employees, or their representatives.
Although health and safety legislation is identical across Great Britain, Scotland differs from England and Wales in two
key ways:
a conviction cannot be obtained unless the essential facts are proved by

corroborated evidence
the enforcing authority (HSE or LA) submits its report to the Crown Office
Procurator Fiscal Service (COPFS) who make the decision on whether it is in the
public interest to prosecute and thereafter undertake the prosecution.
Procurators fiscal are civil servants qualified as solicitors, solicitor-advocates, or advocates and are independent
prosecutors, constitutionally responsible to the Lord Advocate.
Prosecution of individuals
Enforcing authorities are expected to identify and prosecute individuals wherever warranted. The management chain
and the role played by individual directors and managers should be carefully considered and action taken where the
investigation reveals that the offence was committed with their consent, connivance or neglect.
Where a director is found guilty of a health and safety offence the enforcing authorities should consider seeking
disqualification of directors under the Company Directors Disqualification Act 1986.
Explore more
Watch the below video and answer the following questions:
1. Who are the CPS?

2. Who usually determines the charge of a case?
3. What are the two stages of the full code test?
Types of offences
Health and safety prosecutions may involve:
‘summary’ offences, which are held in a magistrates’ court

either way’ offences, which can be heard in either the magistrates’ court or on
indictment in the Crown Court.
No health and safety offences are ‘indictable only’ (only triable in the Crown Court) although health and safety
offences may be linked to indictable only offences, such as manslaughter, and will be heard in the Crown Court.
‘Summary’ offences are heard in the magistrates’ court. Proceedings must normally commence within 6 months of
the date of the offence.
In cases involving ‘either way’ offences, a decision must be made as to whether the case should be heard in the
magistrates’ court or the Crown Court. This is done at the ‘mode of trial’ hearing.
If the defendant agrees to have the case dealt with at the magistrates’ court and pleads guilty, the magistrates may
hear a case that they consider is suitable for summary trial straight after the ‘mode of trial’ hearing. If the defendant
pleads not guilty in a case that the magistrates consider is suitable for summary trial, the case will usually be
adjourned.
In Scotland most cases are prosecuted summarily by a procurator fiscal. Most cases are heard in the sheriff court by
means of a summary complaint (where the sheriff hears the case alone). For health and safety offences, proceedings
are normally raised in the sheriff court by means of a petition. In the most serious cases, the Crown may decide to
proceed by solemn procedure (i.e. trial by jury).
Representation to the courts
In cases of sufficient seriousness, and when given the opportunity, the enforcing authorities should consider
indicating to the magistrates that the offence is so serious that they may send it to be heard or sentenced in the
higher court where higher penalties can be imposed.
In considering what representations to make, enforcing authorities should have regard to Court of Appeal guidance
which says:
'In our judgment magistrates should always think carefully before accepting
jurisdiction in health and safety at work cases, where it is arguable that the fine
may exceed the limit of their jurisdiction or where death or serious injury has
resulted from the offence.'
Death at work
Where there has been a breach of the law leading to a work-related death, enforcing authorities need to consider
whether the circumstances of the case might justify a charge of manslaughter or corporate manslaughter (culpable
homicide or corporate homicide in Scotland).
The HSE, the Association of Chief Police Officers (ACPO), the British Transport Police, the Crown Prosecution Service
(CPS), the Local Government Association (LGA) and the Office of Rail and Road (ORR) have jointly agreed and
published Work-related deaths: A protocol for liaison.
In England and Wales the police are responsible for deciding whether to pursue a manslaughter or corporate
manslaughter investigation and whether to refer a case to the Crown Prosecution Service to consider possible
manslaughter charges.
The enforcing authorities are responsible for investigating possible health and safety offences. If in the course of their
health and safety investigation, the enforcing authorities find evidence suggesting manslaughter or corporate
manslaughter, they should pass it on to the police.
If the police or CPS decide not to pursue a manslaughter or corporate manslaughter case, the enforcing authorities
will normally bring a health and safety prosecution in accordance with the enforcement policy.
Sentencing
Since the introduction of the Health and Safety at Work Act the level of fines imposed for health and safety offences
have regularly been criticised for being too low.
The Court of Appeal attempted to rectify this in the case of R v Howe & Sons (Engineers) Ltd 1999 stating that fines
needed to be large enough to bring the message home to shareholders and senior managers that the courts take the
achievement of a safe working environment very seriously.
The court suggested the adoption of a three-stage approach:
 Criteria
 Aggravating factors
 Mitigating factors
In R v Friskies Petcare (UK) Ltd 2000 the Court of Appeal gave further guidance on the approach to sentencing
policies.
As most judges will have little experience in identifying the aggravating and mitigating features in a health and safety
prosecution the concept of the ‘Friskies schedule’ was developed to help. The approach is:
the prosecutor should list the aggravating features that he says are present
this list should be served on the defendant and the court
in the event of the defendant pleading guilty the defence should submit a similar
document, outlining mitigating features they say are present
if the prosecution and the defence agree the aggravating and mitigating
features, they should commit this to writing and put the agreement into court.
Where there is no agreement the judge will hear argument on the disputed
points, form a view and advise the parties of his view, which would be relevant in
any appeal against the sentence handed down.
It was further suggested that large fines over £500 000, should be reserved for cases where a major public disaster
occurs, or where large numbers of the public have been placed at risk of serious injury, and / or where safety has been
deliberately sacrificed for profit.
Sentencing guidelines
The Sentencing Council for England and Wales has published a definitive guideline for sentencing health and safety
offences, corporate manslaughter and food safety and hygiene offences which in accordance with Section 120 of the
Coroners and Justice Act 2009 must be followed when sentencing individuals or organisations after 1 February 2016.
When prosecuting organisations for health and safety offences the court is required to determine the offence
category using tables which categorise culpability and harm factors.
The sentencing outcome is made by following a process of nine steps or stages:
 Step 1 – Determine the offence category
 Step 2 – Starting point and category range
 Steps 3 and 4 – Step back and review
 Step 5 – Factors which indicate a reduction, such as assistance to the prosecution
 Step 6 – Reduction for guilty pleas
 Step 7 – Compensation and ancillary orders
 Step 8 – Totality principle
 Step 9 – Reasons
Explore more
Watch the below video from The Sentencing Council and answer the following questions:
1. How do judges and magistrates ensure that the way that they sentence offenders is consistent
across the board?
2. What factors are taken into account when sentencing offenders?
3. What factors do you think would be taken into account when sentencing for a health and safety
offence?
Improvement notices
Section 21 of HASAWA states that an improvement notice (IN) is appropriate where an inspector is of the opinion that
a person is contravening a relevant statutory provision, or has contravened a provision in circumstances that make it
likely that the contravention will continue or be repeated.
The improvement notice should:
state that inspector’s opinion

specify the provision(s) in question
give particulars of the reasons why the inspector is of that opinion
require the person to remedy the contravention or the matters occasioning it
specify the period for compliance, which should be not less than 21 days from the
date of service of the notice, being the period in which the recipient of the notice
may lodge an appeal with the employment tribunal.
There should be a discussion with the duty holder about the notice and how to comply with it and efforts should be
made to resolve any points of difference before a notice is served.
Requirements for works to a building's structure cannot be more onerous than current building regulations, unless a
relevant statutory provision specifically imposes more onerous requirements.
An improvement notice cannot be used to require a duty holder to do something which has no attainable end within
the compliance period, for example: on-going maintenance of a control.
The improvement notice cannot require a duty holder to go beyond what is legally required of them. Advice on best
practice may be included in a covering letter, making it clear that it is guidance and does not form part of the notice.
If an appeal is brought against service of an improvement notice, the operation of the notice is suspended until the
appeal is either heard or withdrawn.
Prohibition notices
Section 22 and Section 23 of the Health and Safety at Work Act provide that Prohibition Notices (PN) may be served in
relation to activities which are being, or are likely to be, carried on, and to which any of the relevant statutory
provisions apply (or will apply).
Section 22 allows an inspector to serve a prohibition notice on a person if of the opinion that an activity carried on (or
likely to be carried on) by or under the control of that person involves (or will involve) a risk of serious personal injury.
Case law
In Railtrack plc v Smallwood (2001) the court held that the inspector was entitled to serve a prohibition
notice on the grounds that activities ‘being carried on’ involved a risk of serious personal injury, even
though following a major rail accident (Ladbroke Grove), train services along the affected route were
suspended and resumption of the service was unlikely.
A prohibition notice should:
state that the inspector is of the above opinion

specify the matters which give, or will give, rise to the risk
direct that the activity shouldn't be carried on by, or under, the control of the
person on whom the notice is served, unless the matters giving rise to the
inspector’s opinion have been remedied.
A lack of commonly expected precautions may justify an opinion that there is a risk of serious personal injury where
other factors, which could have reduced the level of risk, are also absent.
Where an inspector is of the opinion that the activity involves a contravention of any of the relevant statutory
provisions, the PN should specify the provision(s) being contravened. However if the inspector reasonably believes
that there is a risk of serious personal injury, a contravention of a statutory provision is not necessary for a PN to be
valid.
The prohibition of an activity may either take effect immediately or be deferred until the end of a specified period.
A deferred prohibition notice would be appropriate where stopping the activity immediately would introduce
additional risks. This would be the case, for example, where it would be dangerous to interrupt a particular process in
mid-cycle.
A prohibition notice may be served on any person in control of a process or a piece of plant subject to the relevant
statutory provisions, including an employee.
A prohibition notice, whether immediate or deferred, is not automatically suspended by an appeal. The appellant
may, however, apply to the employment tribunal for a direction suspending operation of the notice until the appeal is
heard.
Crown notices are the non-statutory equivalent of improvement notices and prohibition notices. Crown notices are
not legally binding and the Crown cannot be prosecuted for a breach of these notices.
Failure to comply
A failure to comply with the requirements of a prohibition notice or an improvement notice is a criminal offence
under Section 33(1)(g) of HASAWA. The offence is an absolute one, and it is no defence to argue that the accused had
done that which was reasonably practicable in the circumstances.
Astutis mission
This mission includes sound.
To view the mission in full screen click here
Click the button to hear your mission
Appeals against enforcement notices
A person on whom an improvement notice or a prohibition notice has been served may appeal, on a point of law or of
fact, to an employment tribunal (ET) within 21 days of its receipt.
To lodge an appeal a Notice of Appeal is sent to the Regional Office of Employment Tribunals, stating:
the appellants name and address for service of documents

the date of the notice appealed against
the address of the premises concerned
the name and address of the respondent / inspector
particulars of the requirements or directions appealed against
the grounds for the appeal.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 empower the employment
tribunal to do the following upon receipt of an application from one of the parties:
hold a pre-hearing review or a case management discussion

order a party to answer questions in writing or provide additional information to
the Tribunal or the other party
make orders for witnesses to attend, or for witness statements to be prepared or
exchanged
order a party to disclose documents
postpone or adjourn any hearing
appoint an assessor to sit with the Tribunal
make any decision that has been agreed in writing by the parties beforehand
make a costs order up to £10 000 against either party, or in excess of that sum if
agreed by the parties or taxed (assessed) by a County Court.
Employment tribunal panels
An employment tribunal typically comprises a legally qualified chairman and two other members, one representing
employers, the other, employees. A hearing can proceed with just the chairman and one member if the parties
consent. In that situation the chairman will have the casting vote.
Objective of the hearing
An employment tribunal’s powers will be exercised in accordance with the ‘overriding objective’ to deal with the cases
justly which includes:
ensuring that the parties are on an equal footing

saving expense
dealing with the case in ways which are proportionate to its complexity,
expeditiously and fairly.
The hearing will normally be in public, unless a party applies for it to be heard in private on grounds of national
security or business confidentiality.
Either side may be represented by a solicitor, barrister or other person such as a trade union official or an employers’
association representative.
Each side is entitled to make an opening statement, give evidence on oath, call witnesses, cross-examine witnesses
from the other side, introduce documentary or other evidence and make a closing submission.
The tribunal will then make its decision, which may be a unanimous one or by a majority. If the tribunal consists only
of two members, the chairman has a casting vote. The decision may be given orally or in writing after consideration
and a formal written declaration sent to both sides.
Grounds for appeal
An appeal may be lodged on the ground that the inspector acted ‘ultra vires’, i.e. lacked the legal power to impose an
enforcement notice. This may be because:
the premises are not covered by the relevant statutory provisions

the inspector has misinterpreted the statutory provision in question.
Further appeals
An appeal from a decision of an employment tribunal which relates to an enforcement notice can only be made to
the Queen’s Bench Divisional Court on a point of law.
Application for review
An application for review is not an appeal against the decision of the employment tribunal, and must fall strictly
within one of the following five grounds:
1) the decision was wrongly made as a result of an error on the part of the tribunal
staff
2) a party did not receive notice of the proceedings
3) the decision was made in the absence of a party
4) new evidence has come to light since the making of the decision, the existence
of which was not previously known or foreseen
5) the interests of justice require a review.
The application must be made within 14 days of the initial decision.
Precedents
Employment tribunal decisions may be used to ‘persuade’ other Tribunals on the correct approach to adopt, but they
are not binding. Some decisions may be in the Industrial Relations Law Reports(IRLR) or Industrial Cases Reports
(ICR).
Cautions
A simple caution is an appropriate course of action where there is evidence of a criminal offence but the public
interest does not require a prosecution. The HSE tends to use the term ‘formal caution’.
A simple caution is defined in the enforcement policy statement (EPS) as:
A statement by an inspector that is accepted in writing by the duty holder, that the
duty holder has committed an offence for which there is a realistic prospect of
conviction. A simple caution may only be used where a prosecution could be
properly brought.
A repetition of a breach that was the subject of a simple caution will normally be treated in the same way as a failure
to comply with an Enforcement Notice, i.e. with criminal proceedings.
Crown censure
The Crown is not exempt from the requirements of the Health and Safety at Work Act and relevant statutory
provisions, but the Crown cannot be prosecuted for breaches of the law.
There are administrative arrangements in place by which Crown bodies may be censured in respect of offences which
would have led to a prosecution.
A Crown censure is the way in which the HSE formally records the decision that, but for Crown immunity, the
evidence of a Crown body’s failure to comply with health and safety law would have been sufficient to provide a
realistic prospect of securing a conviction.
Where the HSE intends to administer a Crown censure the HSE notifies the Crown body in advance, setting out the
evidence against it. The Crown body is then given the opportunity to provide a written response prior to a formal
hearing.
The meeting will be chaired by a senior HSE inspector and minutes taken by the HSE. Relevant trade union or other
safety representatives will be invited to observe the hearing (unless national security or confidentiality reasons make
this inappropriate). No witnesses are called.
If the Crown body agrees with the HSE’s view on the sufficiency of evidence, the HSE will notify the headquarters of
that department or body, which in turn will notify the Minister responsible. The HSE will be consulted on the
submission to the Minister and the censure becomes a matter of public record.
If the Crown body does not accept that there is sufficient evidence, the body will be invited to make further
representations to the head of the appropriate HSE division, who will review the case.
Proving what is practicable
Section 40 of the Health and Safety at Work Act states that:
In any proceedings for an offence under any of the relevant statutory provisions
consisting of a failure to comply with a duty or requirement to do something so far
as is practicable or so far as is reasonably practicable, or to use the best practicable
means to do something, it shall be for the accused to prove (as the case may be)
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.
In general it is for the prosecution to prove its case beyond reasonable doubt. However, Section 40 provides that in the
case of a qualified duty it is for the accused to prove that it was not practicable / reasonably practicable to do more
than was done, or that there was no better practicable means available to satisfy the duty or requirement. This offers
defendants a potential defence if they can show, on the balance of probabilities, that in the circumstances they had
done everything practicable or reasonably practicable, or used the best practicable means to prevent a breach of the
law.
Case law
R v Carr-Briant (1943) established the principle that when the burden of proof is on the defendant, proof
is only required to the civil standard of ‘on the balance of probabilities' .
The reversed burden of proof does not violate a person’s rights under Article 6(2) of the European Convention on
Human Rights / Schedule 1 of the Human Rights Act 1998 which provides that:
...everyone charged with a criminal offence shall be presumed innocent until

proved guilty according to the law.
Case law
Davies v Health and Safety Executive, 2002
The Court of Appeal has held that it was necessary to balance the fundamental rights of the individual
with the general interests of the community in ensuring health and safety at work, and that the reversal
of the burden of proof was justified, necessary and proportionate in health and safety cases and
therefore compatible with the European Convention on Human Rights/Human Rights Act.
Learning check
Discovery learning
Search term:
"Health and safety enforcement”"
Suggested organisations:
Legislation.gov.uk
HSE
Think about:
How does the information on these and other websites differ?

How often does this information change?
Who is affected by this information?
Is this information specific to a particular location?

1.3 Enforcement of The Law

Uploaded by

Copyright:

Available Formats

You might also like

1.3 Enforcement of The Law

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1.3 Enforcement of The Law

Uploaded by

Copyright:

Available Formats

13/10/2023, 11:59 1.

3 Enforcement of the law

1.3 Enforcement of the law

Site: Astutis Learning Campus Printed by: Leon Oosthuysen

responsibility for enforcement is allocated on the basis of main activity at the

Powers of enforcing authorities and inspectors

entering into partnerships with government departments

to enter any premises, as they see necessary, at any reasonable time

The inspector is required to:

consult appropriate persons to determine what dangers may arise before

Section 25 – Power to deal with cause of imminent danger

1. What is the purpose of health and safety inspections?

Section 28 of HASAWA contains restrictions on disclosure of information by an inspector.

for the purposes of their functions

Disclosure of information by inspectors for civil proceedings

HSE enforcement policy statement

The purpose of enforcement is to:

HSE Enforcement Management Model (EMM)

The EMM is structured a seven step process as follows:

 Step 1 - Enforcement priorities

 Step 2 - Risk of serious injury

 Step 3 - Gap analysis

 Step 4 - Initial enforcement expectation

 Step 5 - Duty holder factors

 Step 6 - Strategic factors

 Step 7 - Enforcement conclusion

National Local Authority Enforcement Code

death was a result of a breach of the legislation. (Sentencing guidelines regard

a conviction cannot be obtained unless the essential facts are proved by

Watch the below video and answer the following questions:

1. Who are the CPS?

Health and safety prosecutions may involve:

‘summary’ offences, which are held in a magistrates’ court

Representation to the courts

The court suggested the adoption of a three-stage approach:

The sentencing outcome is made by following a process of nine steps or stages:

 Step 1 – Determine the offence category

 Step 2 – Starting point and category range

 Steps 3 and 4 – Step back and review

 Step 5 – Factors which indicate a reduction, such as assistance to the prosecution

 Step 6 – Reduction for guilty pleas

 Step 7 – Compensation and ancillary orders

 Step 8 – Totality principle

The improvement notice should:

state that inspector’s opinion

A prohibition notice should:

state that the inspector is of the above opinion

This mission includes sound.

To view the mission in full screen click here

Click the button to hear your mission

Appeals against enforcement notices

the appellants name and address for service of documents

hold a pre-hearing review or a case management discussion

Employment tribunal panels

Objective of the hearing

ensuring that the parties are on an equal footing

Grounds for appeal