Criminal Liability in Regulatory Contexts Responses - Law ...

1.964 Work to or involving asbestos can only be lawfully undertaken by licensed
contractors and is subject to various notice requirements: breach of such health
and safety regulations is a criminal offence, again, contrary to s 33(1)(c) HSWA.
The circumstances of trust involved in the holding of a license; the resultant
benefit to the licensee of potential remuneration; the super-hazardous nature of
the activities; the importance of the requirements of notice, accurate detail of the
nature and of the extent work; and the likely effect of criminal conviction on the
status of a licensee are all reasons that “wrongdoing‟ by “simple ... failure to
provide information‟ is required to potentially attract the public stigma of criminal
conviction.
1.965 Consistency cannot be applied across all regulatory offences concerned with the
supply, receipt or disclosure of information because the context of such offences
varies, particularly the nature of the obligation upon the dutyholder and the nature
of the harm or wrong the regulation is addressed.
PROPOSAL 12
HSE
1.966 The term “unjustified risk-taking” is an interesting concept that does not readily
read across to health and safety law. The law we enforce does not approach risk
in terms of justifying the level of risk that may remain. Rather, the approach is to
identify any risk and then mange that risk done to a level so far as is reasonably
practicable. The steps that should be taken will be related to the degree of risk
and what would be considered as proportionate in the circumstances. If this
proposal is in relation to offences where the duty holder is calculating how much
risk taking they can justify and still remain within the law, then we do not see how
this concept would apply within any health and safety regulatory regime.
1.967 In general, the majority of legislative requirements in health and safety law do not
require the prosecution to prove a fault element. These offences are directly
concerned with the prevention of harm to the health and safety of workers an
those affected by work activities whether the emphasis is on the management of
risks, so far as it reasonably practicable. The difficulty with this “fault element”
concept is the emphasis on linking the conduct to the harm done. Health and
Safety duties aim to reduce risk rather than focus upon harm done. This is
appropriate because it is the potential for harm that the law is addressing, not the
realisation of that harm. For example, the failure to provide instruction or training
may appear to be a minimal offence. This may be the case if the equipment in
use is a hammer, but where that equipment is a forklift truck, chainsaw or part of
a major chemical plant installation, the breach could lead to a serious
consequence.
1.968 The proposal does not address the circumstances where a licensing regime is
designed to deal with high hazard matters, where there is an indirect link between
the activity and harm, for example, explosives or nuclear, and other
permissioning regimes.
Clifford Chance
1.969 Agree. Might be something with which Parliament Counsel can assist
Government departments.
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