safety at work

1.1.4 Legal issues of the incident The preceding paragraphs show that it is necessary to consider: criminal and civil law, the organisation of the courts and court procedure, procedure i

Safety at Work

Sixth edition

Edited by

John Ridley and John Channing

An imprint of Elsevier

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1.1.3 Some possible actions arising from the incident 3

1.1.17 Safety legislation before the Health and Safety at

1.2 Principal health and safety Acts S Simpson 49

1.2.9 Activity Centres (Young Persons Safety) Act 1995 63

1.3 Influences on health and safety J R Ridley 67

1.6 Consumer protection R G Lawson 119

1.7.4 Investigation, negotiation and the quantum of damage 151

1.8 Civil liability E J Skellett 156

1.8.6 Employer’s Liability (Defective Equipment) Act 1969 165

2.1 An introduction to risk management J E Channing 175

2.2 Principles of the management of risk L Bamber 1872.2.1 Principles of action necessary to prevent accidents 187

2.2.7 Accident prevention: legal, humanitarian and

2.3 Risk management: organisation and administration for

2.4 Risk management: techniques and practices L Bamber 227

2.4.9 Quality, Environment, Safety and Health Management

2.5 The collection and use of accident and incident data

2.5.4 Legal requirements to notify accidents and incidents 271

2.5.8 Accident and incident data and risk assessment data 292

Appendix UK requirements for reporting accidents and incidents 299

2.6 Practical safety management: systems and techniques

2.6.4 Implementing a regulation within a safety

2.7.3 Behavioural science and the human information

2.8.3 Behaviour modification for managers and supervisors 4022.8.4 Applying behaviour concepts to incident investigation 4082.8.5 Behaviour concepts and the safety management system 410

2.8.7 Behaviour modification processes: the hazards 412

3.1.11 Factors determining the effect of substances in the

3.2 Occupational diseases Dr A R L Clark 447

3.5.9 Noise control techniques 556

3.6 Workplace pollution, heat and ventilation F S Gill 5683.6.1 Methods of assessment of workplace air pollution 569

3.6.4 Ventilation control of a workplace environment 5753.6.5 Assessment of performance of ventilation systems 577

3.7 Lighting E G Hooper and updated by Jonathan David 581

3.8 Managing ergonomics Nick Cook 594

Part 4 Workplace safety 649 4.1 Science in engineering safety J R Ridley 651

4.4 Electricity E G Hooper and revised by Chris Buck 769

4.5 Statutory examination of plant and equipment

4.7 Managing chemicals safely John Adamson 850

Part 5 The environment 891 5.1 The environment: issues, concepts and strategies

5.2 Environmental management systems J E Channing 908

5.2.2 Establishing an environmental management system 909

5.4.6 Air pollution: control measures and abatement

5.5 The environment at large G N Batts 986

5.5.6 Increasing environmental legislation, controls and

5.5.10 Environmental management system (EMS) and

Appendix 1 The Institution of Occupational Safety and Health 1007Appendix 2 Reading for Part I of the NEBOSH Diploma

Bill Callaghan, Chairman – Health & Safety Commission

In 1972 Lord Robens wrote

[We are] in no doubt that the most important single reason foraccidents at work is apathy There is a curious paradox here.Society as a whole reacts keenly to major disasters There isalso some ephemeral reaction to the annual statistics ofindustrial death and injury.…Even rarer is personal awareness

of diseases which manifest themselves long after periods ofexposure in an unhealthy working environment

We have made much progress since the Robens Report and the Health

& Safety at Work Act Our record is a good one internationally

However, we need to improve performance to meet the challengingtargets of revitalising Health & Safety The benefits of good health andsafety provision are not universally appreciated; poor risk managementoften only becomes apparent once it is too late Some employers hope thatincidents of occupational ill health or injury will not happen to them.They overlook the pure financial cost of such events – in terms of lawyers’fees, insurance, legal claims, downtime, recruiting and training replace-ments, and even their own reputation

Not enough employers appreciate the value of a committed, interestedworkforce that knows it is cared for and involved Obvious concern for

health and safety is one way employers can show they value theirworkforce We need to invest in a culture that involves employers andemployees working together in partnership A committed workforcebrings continuity, drives down costs of recruitment and training, andreduces absence A good reputation for health and safety suggestsreliability and encourages investors, shareholders and customers.Since Lord Robens wrote his report, the world has moved on Thedemographics of the country and the workplace have changed; educationlevels have risen; the balance of work has shifted from manufacturing toservice industries With developing technology and research, new risksand hazards have evolved But so too has our understanding and ability

to combat them

We need to make work a better place to be This book is a support forthose of you who want to take forward this work Together we canimprove the competitiveness of British industry Together we can makegood health and safety the cornerstone of a civilised society

Preface to sixth edition

Since publication of the 5th edition there have been significant ments in health and safety First, the importance of the roles of directorsand managers in health and safety has been highlighted by a number ofmajor incidents, in some of which lives were lost Subsequent investiga-tion established serious shortcomings in the commitment and support forhealth and safety at very senior levels in the organisations concerned.Safety is like water, it flows downhill and if the spring at the top is dry it

develop-is unlikely that the seeds planted below will be nurtured and flourdevelop-ish.There is a growing conviction that the attitudes at the most senior levels

in an organisation are crucial to its safety performance We have takenthis on board and added two new chapters on the management of risk,one of which emphasises the need for a sound organisational structure toachieve effective risk management Other existing chapters have beensignificantly enlarged They reflect developments in the behaviouralapproach to risk management and current thinking on effective manage-ment systems including the development of a international standard onsafety management that will inevitably emerge

Second, what has been a fringe subject but is rapidly becoming part ofthe safety manager’s responsibilities is the quality of the environment –both in the workplace and in the wider context of global pollution.Interest in this subject is stimulated by the growing concerns for what weare doing to the global environment through man’s thoughtless andbarely controlled emission of ‘greenhouse’ and ozone-depleting gasesand fumes But this has in turn focused attention on more local issuessuch as the quality of the working environment and how we dispose ofour waste – solid, liquid and gases To reflect the growing importance ofthis subject we have added a completely new part (Part 5) dealing solelywith environmental issues

Health, safety and the environment tend to be linked together andfrequently fall to the safety department to administer, whereas qualitymanagement remains firmly in the hands of the design and productiondepartments Each management system demands the same attitudes andapproaches to attaining high standards without increasing costs orburdens beyond an acceptable limit and we see the development of theintegration of the three management systems as an inherent and essentialpart of an enterprise’s operational procedures

The official recognition of IOSH as a professional body through thegranting to them of a Royal Charter has made membership an evengreater valued goal This, in turn, will demand high standards ofacademic attainment in the qualifying examinations While the uni-versities have established their own standards of excellence that theydemand of their graduates – standards that are moderated by IOSH –other teaching and training establishments have to rely on nationallyavailable standards Following discussions, led by the National TrainingOrganisation for Employment (ENTO) in which a range of interestedparties participated, a set of occupational health and safety standards wasdeveloped These have been integrated with the Scottish and NationalVocational Qualifications (S/NVQ) to form the basic academic back-ground leading to membership of the Institution of Occupational Safetyand Health (IOSH) Examinations against these new standards will beadministered by the National Examination Board in Occupational Safetyand Health (NEBOSH) and certified through the awarding of a Diploma.Much of the content of the book is pertinent to those studying for thisDiploma and to guide students to the relevant parts, a suggested readinglist has been included as an appendix.

Major changes have and still are taking place in the procedures andconduct of cases in the courts following the recommendations of theWoolf report The aim is to make the administration of justice moredynamic through the more flexible use of resources and representations.Those changes in court procedure that have already been made have been

incorporated into chapter 1 Explaining the law It is to be hoped that we,

and in particular claimants for compensation following injuries, willbenefit from these changes through the quicker settlement of litigationsand other matters of legal contention put before the courts

Although we have included much that is new in the way that health,safety and environmental responsibilities are viewed and accepted, wehave not ignored the solid foundation on which the past high levels ofhealth and safety in the UK have been based The text includes those basicconcepts, techniques and practices that have served so well the cause ofhealth and safety of workpeople for so many years Not least among theseare the relationships that have developed between employers andemployees that are so essential for good performance in, not only healthand safety, but all the aspects of occupational activities

Risk assessments have been a growing and central feature of health andsafety activities through their application to general employment and

chemical hazards The gay abandon with which the phrase risk assessment

is used gives rise to the risk that it is becoming a ‘buzz’ word and that theessential nature of the technique is being brought into disrepute bymisunderstanding of its role and purpose in the overall pattern of healthand safety activities Our approach has been to put the technique intoperspective and view it in the overall context of all the other actions thatare taken to reduce the risks faced by workpeople and to improve thequality of their working life

Many injuries and much of the ill health from work activities can belaid at the door of inappropriate physical demands being made on theoperators Not only through strains and sprains from overloaded limbs

but subjection to unsuitable working environment, difficult manual

operations, etc A new chapter on Applied ergonomics has been included

that approaches the subject from the point of view of what the body andits limbs can reasonably do This will allow the manager and practitioner

to design processes and operations in the confidence that the work to becarried out will not overstretch the operator beyond the limits of what thehuman body is physically capable of doing

While there appears to have been a reduction in the rate of propagation

of new EU directives – a respite resulting from the updating of many ofthe existing directives to bring them in line with technological develop-ments since they were first adopted – there has been no relief from theflow of European and international standards that put the meat on thebones of legislative requirements A number of these standards are based

on UK originals that have been modified (some might say diminished) torelate to the employment and industrial climates of other EU memberstates Once a standard is adopted as harmonised (European) orinternational, it takes precedence over the equivalent national standard

A notable casualty in this process has been BS 5304 Safety of Machinery.

However, because it is so well known and provides such a breadth ofguidance on good safety practices, BSI have re-issued it as a ‘PublishedDocument’ PD 5304 which is advisory and cannot be used as evidence ofconformity with legislative requirements and as such it is referred to inthe text

An objective of the book has always been, and still is, to provideinformation and guidance in understanding health and safety legislativerequirements and standards Also to assist all those involved in this field

in attaining the highest standards, whether as a practising manager,safety practitioner or student We hope that this new edition carries thisobjective forward and in so doing points the way for futuredevelopments

John RidleyJohn ChanningSeptember 2002

Preface to first edition

Since the first welfare Act was put on the Statute Book in 1802 there hasbeen a steady development in safety and health legislation aimed atimproving the lot of those who work in mills, factories, and even inoffices In the past two decades official concern has increased, culminat-ing in 1974 in the Health and Safety at Work etc Act ‘Safety at Work’ hasnow taken on a new and more pertinent meaning for both employer andemployee

Developments in the field of safety extend throughout much of theworld, indicating an increasing concern for the quality of working life InEurope the number of directives promulgated by the European EconomicCommunity are evidence of this growing official awareness of thedangers that the individual faces in his work

Health and safety laws in the UK are the most complex andcomprehensive of all employment laws Consequently employers arelooking to a new breed of specialists, the occupational safety advisers, forexpert advice and guidance on the best means for complying with, andachieving the spirit of, the law These specialists must have the necessaryknowledge of a wide range of disciplines extending from safety andrelated laws to occupational health and hygiene, human behaviour,management and safety techniques, and of course, the hazards inherent

in particular industries or pursuits With this demand for expert advicehas grown a need for a nationally recognised qualification in this newindustrial discipline With this in mind the Institution of OccupationalSafety and Health (IOSH) published in 1978 a syllabus of subjects forstudy by those seeking to become professionally qualified in this field.This syllabus now forms the foundation upon which the NationalExamination Board in Occupational Safety and Health (NEBOSH) sets itsexaminations

Prepared in association with IOSH, this book covers the completesyllabus It is divided into five parts to reflect the spectrum of the fivemajor areas of recommended study Each part has a number of chapters,which deal with specific aspects of health or safety To enable readers toextend their study of a particular subject, suitable references are giventogether with recommendations for additional reading Further informa-tion and details of many of the techniques mentioned can also be

obtained through discussions with tutors A table is given in Appendix II

to guide students in their selection of the particular chapters to study forthe appropriate levels and parts of the examination

A major objective of this book has been to provide an authoritative, to-date guide in all areas of health and safety The contributing authorsare recognised specialists in their fields and each has drawn on his or herpersonal knowledge and experience in compiling the text, emphasisingthose facets most relevant to the safety advisers’ needs In this they havedrawn material from many sources and the views they have expressedare their own and must not be construed as representing the opinions orpolicies of their employers nor of any of the organisations which have sowillingly provided material

up-It has been common practice to refer to the safety specialist as the

‘safety officer’, but this implies a degree of executive authority whichdoes not truly indicate the r ˆole he plays Essentially that r ˆole is one ofmonitoring the conditions and methods of work in an organisation toensure the maintenance of a safe working environment and compliancewith safety legislation and standards Where performance is foundwanting his function is to advise the manager responsible on thecorrective action necessary Reflecting this r ˆole, the safety specialist isthroughout the book referred to as the ‘safety adviser’, a title that moreclosely reflects his true function

The text has been written primarily for the student However, a greatdeal of the content is directly relevant to the day-to-day work ofpractising managers It will enable them to understand their safetyobligations, both legal and moral, and to appreciate some of thetechniques by which a high standard of safe working can be achieved Itwill also provide an extensive source of reference for established safetyadvisers

The text of any book is enhanced by the inclusion of tables, diagramsand figures and I am grateful to the many companies who have kindlyprovided illustrations I would also like to acknowledge the help I havereceived from a number of organisations who have provided information

Particularly I would like to thank the journal Engineering, the Fire

Prevention Association, the Health and Safety Executive, the BritishStandards Institution and the International Labour Office

I also owe grateful thanks to many people for the help andencouragement they have given me during the preparation of this book,

in particular Mr J Barrell, Secretary of IOSH, Mr D.G Baynes of NapierCollege of Science and Technology, Mr N Sanders, at the time a seniorsafety training adviser to the Road Transport Industry Training Board, DrIan Glendon of the Department of Occupational Health and Safety at theUniversity of Aston in Birmingham, Mr R.F Roberts, Chief Fire andSecurity Officer at Reed International’s Aylesford site and David Miskin,

a solicitor, for the time each gave to check through manuscripts and forthe helpful comments they offered

I am also indebted to Reed International P.L.C for the help they havegiven me during the editing of this book, a task which would have beenthat much more onerous without their support

John Ridley

John Adamson, MRSC FBIOH, Dip.Occ.Hyg., ROH, MIOSH, RSPManager Health, Safety, Hygiene and Fire, Kodak ChemicalManufacturing

L Bamber, BSc, DIS, FIRM, FIOSH, RSP

Consultant, Risk Solutions International

G N BattsBSc, M.Phil., PhD, DIC

Environmental Adviser, Kodak European Region

Dr A J Boyle, BSc, MSc, PhD, CPsychol, AFBPhS, FIOSH, RSP

Chris Buck, BSc(Eng), MIEE, FIOSH, RSP

Consultant

J E Caddick, BSc(Hons), CEng, MIMechE

Zurich Risk Services

Ray Chalklen, MIFireE

Fire consultant

John Channing, MSc(Safety), MSc(Chemistry) FIOSH, RSP

Formerly Manager Health, Safety and Environment, KodakManufacturing

Director, Pharos Consultancy Services Limited

Dr A R L Clark, MSc, MB, BS, MFOM, DIH, DHMSA

Dr T Coates, MB, BS, FFOM, DIH, DMHSA

Nick Cook, MRSC, CChem, MIOSH

Occupational Hygienist, Kodak Ltd

Jonathan David, BSc

The Chartered Institution of Building Services Engineers

Frank S Gill, BSc, MSc, Ceng, MIMinE, FIOSH, FFOM(Hon),Dip.Occ.Hyg

Consultant ventilation engineer and occupational hygienist

Professor Andrew Hale, PhD, CPsychol., MErgS, FIOSH

Safety Science Group, Delft University of Technology, Netherlands

Dr Chris Hartley, PhD, MSc, MIBiol

Visiting Fellow to Aston University and a consultant

R W Hodgin, LL.M

School of Law, University of Birmingham

Edwin Hooper

Roland Hudson, FIOSH, RSP, FRSH, ASSE

Construction safety consultant

Amanda Jones, Solicitor

Pattinson and Brewer

Dr R G Lawson, LL.M, PhD

Consultant in marketing and advertising law

Dr M Maslanyj

National Radiological Protection Board

John McMullen, BSc, CEng, MIMechE

Zurich Risk Services

R D Miskin

A solicitor

Samantha Moss, BSc(Hons), MIOSH, AMIEMA

HSE Manager, Business Operations

John Ridley, BSc, CEng, MIMechE, FIOSH, DMS

Peter Shaw

National Radiological Protection Board

Stan Simpson, CEng, MIMechE, FIOSH

Eric J Skellett

Solicitor

Ron W Smith, BSc(Eng), MSc(Noise and vibration)

Hodgson & Hodgson Group Ltd

Brenda Watts, MA, BA

Barrister, Senior Lecturer, Southampton College of Higher Education

Ashton West, BA(Hons), ACII

Claims Director, Rubicon Corporation

Dr A D Wrixon, DPhil, BSc(Hons)

International Atomic Energy Agency

Chapter 1.1 Explaining the law (Brenda Watts) 3

Chapter 1.2 Principal health and safety Acts (S Simpson) 49Chapter 1.3 Influences on health and safety (J R Ridley) 67Chapter 1.4 Law of contract (R W Hodgin) 84

Chapter 1.5 Employment law (R D Miskin updated by

Chapter 1.6 Consumer protection (R G Lawson) 119

Chapter 1.7 Insurance cover and compensation (A West) 141Chapter 1.8 Civil liability (E J Skellett) 156

Laws are necessary for the government and regulation of the affairs andbehaviour of individuals and communities for the benefit of all Associeties and communities grow and become more complex, so do thelaws and the organisation necessary for the enforcement and administra-tion of them

The industrial society in which we live has brought particular problemsrelating to the work situation and concerning the protection of theworker’s health and safety, his employment and his right to take

‘industrial action’

This section looks at how laws are administered in the UK and theprocedures to be followed in pursuing criminal actions and common lawremedies through the courts It considers various Acts and Statutes thatare aimed at safe working in the workplace and also some of theinfluences that determine the content of new laws Further, the processesare reviewed by which liabilities for damages due to either injury orfaulty product are established and settled

1.1.3 Some possible actions arising from the incident

The inspector, in his official capacity, may consider a prosecution in the

criminal courts where he would have to show a breach of a relevantprovision of the safety legislation The likely result of a successful safetyprosecution is a fine, which is intended to be penal It is not redress forBertha

The employee, Bertha, has been injured She will seek money

compensa-tion to try to make up for her loss No doubt she will receive Stateindustrial injury benefit, but this is intended as support againstmisfortune rather than as full compensation for lost wages, reducedfuture prospects or pain and suffering Bertha will therefore look to heremployer for compensation She may have to consider bringing a civilaction, and will then seek legal advice (from a solicitor if she has no union

to turn to) about claiming compensation (called damages) To succeed,

Bertha must prove that her injury resulted from breach of a legal dutyowed to her by Hazards.

For the employer, Hazards Ltd, if they wish to dispute the improvement

notice, the most immediate legal process will be before an employmenttribunal The company should, however, be investigating the accident toensure that they comply with statutory requirements; and also in theirown interests, to try to prevent future mishaps and to clarify the facts fortheir insurance company and for any defence to the factory inspectorand/or to Bertha The company would benefit from reviewing its safetyresponsibilities to non-employees (third parties) who may come on site

As a company, Hazards Ltd has legal personality; but it is run by peopleand if the inadequate lighting and slack housekeeping were attributable

to the personal neglect of a senior officer (s 37 HSW), as well as thecompany being prosecuted, so too might the senior officer

1.1.4 Legal issues of the incident

The preceding paragraphs show that it is necessary to consider:

criminal and civil law,

the organisation of the courts and court procedure,

procedure in employment tribunals, and

the legal authorities for safety law: legislation and courtdecisions

1.1.5 Criminal and civil law

A crime is an offence against the State Accordingly, in England

prosecutions are the responsibility of the Crown Prosecution Service; or,where statute allows, an official such as a factory inspector (ss 38, 39HSW) Very rarely may a private person prosecute In Scotland the police

do not prosecute since that responsibility lies with the procurators-fiscal,and ultimately with the Lord Advocate In Northern Ireland the Director

of Public Prosecutions (DPP) initiates prosecutions for more seriousoffences, and the police for minor cases The DPP may also conductprosecutions on behalf of Government Departments in magistrates’courts when requested to do so The procurators-fiscal, and in Englandand Northern Ireland the Attorney General acting on behalf of theCrown, may discontinue proceedings; an individual cannot The Justice(Northern Ireland) Bill1provides for a Prosecution Service to undertakeall prosecutions and for the DPP to discontinue proceedings, not theAttorney General (see also section 1.1.14)

Criminal cases in England are heard in the magistrates’ courts and inthe Crown Court; in Scotland mostly in the Sheriff Court, and in the HighCourt of Justiciary In Northern Ireland criminal cases are tried inmagistrates’ courts and in the Crown Court In all three countries themore serious criminal cases are heard before a jury, except in NorthernIreland for scheduled offences under the Northern Ireland (EmergencyProvisions) Act of 1996

The burden of proving a criminal charge is on the prosecution; and itmust be proved beyond reasonable doubt However, if, after the incident

at Hazards, Instepp prosecutes, alleging breach of, say s 2 of HSW, thenHazards must show that it was not reasonably practicable for thecompany to do more than it did to comply (s 40 HSW) This section putsthe burden on the accused to prove, on the balance of probabilities, that

he had complied with a practicable or reasonably practicable statutoryduty under HSW

The rules of evidence are stricter in criminal cases, to protect theaccused Only exceptionally is hearsay evidence admissible In Scotlandthe requirement of corroboration is stricter than in English law

The main sanctions of a criminal court are imprisonment and fines Thesanctions are intended as a punishment, to deter and to reform, but not to

compensate an injured party A magistrates’ court may order compensation

to an individual to cover personal injury and damage to property Such acompensation order is not possible for dependants of the deceased inconsequence of his death At present the upper limit for compensation inthe magistrates’ court is £50002

A civil action is between individuals One individual initiates

proceed-ings against another and can later decide to settle out of court Over 90%

of accident claims are so settled

English courts hearing civil actions are the county courts and the HighCourt; in Scotland the Sheriff Court and the Court of Session In NorthernIreland the County Court and the High Court deal with civil accidentclaims Civil cases rarely have a jury; in personal injury cases only in themost exceptional circumstances

A civil case must be proved on the balance of probabilities, which hasbeen described as ‘a reasonable degree of probability more probablethan not’ This is a lower standard than the criminal one of beyondreasonable doubt, which a judge may explain to a jury as ‘satisfied so thatyou are sure’ of the guilt of the accused

In civil actions the claimant, formerly the plaintiff, (the pursuer inScotland) sues the defendant (the defender) for remedies beneficial tohim Often the remedy sought will be damages – that is, financialcompensation Another remedy is an injunction, for example, to prevent

a factory committing a noise or pollutant nuisance

1.1.6 Branches of law

As English law developed it followed a number of different routes or

branches The diagram in Figure 1.1.1 illustrates the main legal sources of

English law and some of the branches of English law

Criminal law is one part of public law Other branches of public law areconstitutional and administrative law, which include the organisationand jurisdiction of the courts and tribunals, and the process oflegislation

Civil law has a number of branches Most relevant to this book arecontract, tort (delict in Scotland) and labour law A contract is anagreement between parties which is enforceable at law Most commercial

law (for example, insurance) has a basis in contract A tort is a breach ofduty imposed by law and is often called a civil wrong The two mostfrequently heard of torts are nuisance and trespass However, the twomost relevant to safety law are the torts of negligence and of breach ofstatutory duty.

The various branches of law may overlap and interact At Hazards,

Bertha has a contract of employment with her employer, as has every

employee and employer An important implied term of such contracts isthat an employer should take reasonable care for the safety of employees

If Bertha proves that Hazards were in breach of that duty, and that in

consequence she suffered injury, Hazards will be liable in the tort of negligence There could be potential criminal liability under HSW Again,

Hazards might discipline a foreman, or Bertha’s workmates might refuse

to work in the conditions, taking the situation into the field of industrial relations law.

1.1.7 Law and fact

It is sometimes necessary to distinguish between questions of law andquestions of fact

A jury will decide only questions of fact Questions of fact are about events

or the state of affairs and may be proved by evidence Questions of law seek

to discover what the law is, and are determined by legal argument.However, the distinction is not always clear-cut There are moreopportunities to appeal on a question of law than on a question of fact.Regulation 12 of the Workplace (Health, Safety and Welfare) Regula-tions 1992 (WHSW)3requires an employer (and others, to the extent oftheir control) to keep, so far as reasonably practicable, every floor in theworkplace free from obstructions and from any article which may cause

a person to slip, trip or fall In the Hazards incident Bertha’s tripping, herinjury, the wire being there, the routine of Hazards, are questions of fact.However, the meaning of ‘obstruction’, of ‘floor’, of ‘reasonably practica-ble’ are questions of law

1.1.8 The courts

1.1.8.1 First instance: appellate

A court may have first instance jurisdiction, which means that it hears cases for the first time; it may have appellate jurisdiction which means that

a case is heard on appeal; or a court may have both

1.1.8.2 Inferior: superior

Inferior courts are limited in their powers: to local jurisdiction, in theseriousness of the cases tried, in the sanctions they may order, and, inEngland, in the ability to punish for contempt

In England the superior courts are the House of Lords, the judicialCommittee of the Privy Council, and the Supreme Court of Judicature.Magistrates’ and county courts are inferior courts.

For Scotland the Sheriff Court is an inferior court while the superiorcourts are the House of Lords, the Court of Session and the High Court

of Justiciary

In Northern Ireland the superior courts are the House of Lords and theSupreme Court of Judicature of Northern Ireland The inferior courts arethe magistrates’ courts and the county courts

1.1.8.3 Criminal proceedings – trial on indictment; summary trial

The indictment is the formal document containing the charge(s), and thetrial is before a judge and a jury (of 12 in England and N Ireland, of 15

in Scotland) A summary trial is one without a jury

The most serious crimes, such as murder, or robbery, must be tried onindictment (or solemn procedure in Scotland) Some offences are triableonly summarily (for example, most road traffic offences), others (forexample, theft) are triable either way according to their seriousness Mostoffences under HSW are triable either way, but in practice are heardsummarily

1.1.8.4 Representation

A practising lawyer will be a solicitor or a barrister (advocate inScotland) Traditionally, barristers concentrate on advocacy and providespecialist advice A qualification for senior judicial appointment issufficient experience as an advocate A barrister who has considerableexperience and thinks he has attained some distinction may apply to theLord Chancellor to ‘take silk’ A solicitor is likely to be a general legaladviser Until the Courts and Legal Services Act 1990 (as amended by theAccess to Justice Act 1999), a solicitor’s right to represent in court waslimited to the lower courts That Act provides for the ending of thebarrister’s monopoly appearances in the higher courts Solicitors are able

to appear in the High Court and before juries; and be appointed judges inthe High Court Qualified Fellows of the Institute of Legal Executivesnow have certain rights of audience, particularly in county courts andtribunals A party may always defend himself, but there are restrictions

on an individual personally conducting a private prosecution in the

Crown Court or above (R v George Maxwell Ltd4) There is no generalright of private prosecution in Scotland

1.1.8.5 An outline of court hierarchy in England

There is a system of courts for hearing civil actions and a system for

criminal actions These are shown diagrammatically in Figures 1.1.2 and 1.1.3 However, some courts have both civil and criminal jurisdiction19

Figur

Figur

The lowest English courts are the magistrates’ courts, which dealmainly with criminal matters; and the county courts, which deal onlywith civil matters.

Magistrates determine and sentence for many of the less seriousoffences They also hold preliminary examinations into other offences tosee if the prosecution can show a prima facie case on which the accusedmay be committed for trial Serious criminal charges (and some not soserious where the accused has the right to jury trial) are heard onindictment in the Crown Court The Crown Court also hears appeals frommagistrates

There are extensive proposals for the reform of criminal courtprocedure in the Auld Report5, acknowledged by the Government as animportant contribution towards establishing modern, efficient criminalcourts Among the recommendations is unification of the magistrates’courts and Crown Court in a single criminal structure with a new thirdintermediate District Division Cases would be tried, according to theirseriousness and the likely maximum sentence, either by magistrates, byjudge and jury or in a District Division by a judge and two laymagistrates The court, not the defendant, would decide which tribunalshould hear the case Jury trial should be limited to allegations of moreserious crimes The report also proposes increasing magistrate’s powers

to impose prison sentences up to 12 months and the formalising of asystem of sentence discounts to encourage defendants to plead guilty, as

an attempt to reduce the number of jury trials For civil cases, the Courtsand Legal Services Act increases the jurisdiction of the county courts Allpersonal injury claims for less than £50 000 will start in the county court;there is no upper limit but county court jurisdiction depends on thecomplexity of the case District judges attached to the small claims courtsmay deal with personal injury cases for less than £5000 More importantcivil matters, because of the sums involved or legal complexity, will start

in the High Court of Justice The High Court has three divisions:Queen’s Bench (for contract and torts),

Chancery (for matters relating to, for instance,

land, wills, partnerships and companies),

The High Court, the Crown Court and the Court of Appeal are known

as the Supreme Court of Judicature

The Court of Appeal has two divisions: the Civil Division whichhears appeals from the county courts and the High Court; and the

Figur

Criminal Division which hears appeals from the Crown Court Furtherappeal, in practice on important matters of law only, lies to the House

of Lords from the Court of Appeal and in restricted circumstances fromthe High Court The Judicial Committee of the Privy Council is not part

of the mainstream judicial system, but hears appeals, from, for instance,the Channel Islands, some Commonwealth countries and some dis-ciplinary bodies

Since our entry into the European Community, our courts must followthe rulings of the European Court of Justice On an application from amember country, the European Court will determine the effect ofEuropean directives on domestic law Potentially, the involvement is far-reaching in industrial obligations, including safety

1.1.8.6 Court hierarchy in Scotland

Scotland also has separate but parallel frameworks for the organisation of

its civil and criminal courts These are shown diagrammatically in Figures 1.1.4 and 1.1.5 and are discussed below.

Figure 1.1.5 The main criminal courts in Scotland

The court most used is the local Sheriff Court which has wide civil andcriminal jurisdiction Civilly it may sit as a court of first instance or as acourt of appeal (to the Sheriff Principal from a sheriff’s decision) Forcriminal cases the sheriff sits with a jury for trials on indictment, andalone to deal with less serious offences prosecuted on complaints, whenits jurisdiction encompasses that of the restricted district court.

The Court of Session is the superior civil court The Outer House,sometimes sitting with a jury, has original jurisdiction; the Inner Househears appeals from the Sheriff Court and from the Outer House Matters

of law may be referred to the Inner House for interpretation, and it alsohears appeals on matters of law from some committees and tribunals,such as decisions on HSW enforcement notices Appeal from the InnerHouse is to the House of Lords For criminal cases the final court ofappeal is the High Court of Justiciary, with three or more judges Whensitting with one judge and a jury it is a court of first instance, havingexclusive jurisdiction in the most serious criminal matters and unre-stricted powers of sentencing The High Court of Justiciary hears appealsfrom the first instance courts but only on matters of law in cases triedsummarily in the Sheriff Court and the district courts The judges of theHigh Court are the same persons as the judges of the Court of Session.They have different titles and wear different robes

1.1.8.7 Court hierarchy in Northern Ireland

The hierarchy of courts in Northern Ireland is different from that for the

English courts and is shown in Figures 1.1.6 and 1.1.7.

Most criminal charges are heard in the magistrates’ courts Magistratestry summary accusations or indictable offences being dealt with sum-marily They also undertake a preliminary examination of a case to beheard in the Crown Court on indictment (committal proceedings).Following trial in a magistrates’ court, the defendant may appeal to thecounty court; or, on matters of law only, by way of ‘case stated’ to theCourt of Appeal The prosecution may appeal only to the Court of Appealand only on a matter of law by way of ‘case stated’ Trial on indictment,for more serious offences, is in the Crown Court, before a judge and jury(except for scheduled offences under the emergency legislation whencases are heard before a judge alone)

Appeal from the Crown Court is to the Court of Appeal The defendantneeds leave unless he is appealing only on a matter of law The prosecutionmay refer a matter of law to the Court of Appeal, but this will not affect anacquittal Final appeal by either side is to the House of Lords, but only withleave and only on matters of law of general public importance Some civilproceedings take place in a magistrates’ court before a resident magistrate6

(RM) County courts have a wider and almost exclusive civil first instancejurisdiction The procedure is less formal than in English county courts.Appeal from a County Court is to the High Court for a rehearing, or to theCourt of Appeal on a matter of law only

The High Court has unlimited civil jurisdiction Appeal by way ofrehearing is to the Court of Appeal; or in exceptional circumstances on