gkenyon:

whjohnson:

Also, the OSG is a guide, so is it that which 'must' be followed?


I have often found myself asking that very same question!

There is a "precedence" in legal terms

1. Legislation: you have to whether you like it or not

• Approved Codes of Practice / Approved Documents: Well, if you don't follow them (particularly the HSE ones), you have to prove in court you did something at least as safe. This is a little counter to the "innocent until proven guilty" premise, but it's there in legislation all the same, and has been for too many years for anyone to say it's unfair.

• British Standards: Can be used in court as evidence. (What they don't explicitly say, is that it's evidence by BOTH sides, prosecution and defence).

• Industry Guidance ... is just that, good practice. But well worth doing all the same, because it might avoid any issues with 1 to 3 above, provided it doesn't conflict.

Wise words from Graham, but there is also a nuanced difference between an HSE ACOP and HSE legal advice. If you are prosecuted under H&S law and it is shown that you have failed to follow an ACOP, there is a rebuttable presumption of guilt. In other words, you have to show that what you did was safe; it is not for HSE to show that it was unsafe.


However, as far as the legal advice is concerned, you do not have to follow it, but if you did, there is a presumption of innocence.

This is how HSE puts it.

gkenyon:

whjohnson:

Also, the OSG is a guide, so is it that which 'must' be followed?


I have often found myself asking that very same question!

There is a "precedence" in legal terms

1. Legislation: you have to whether you like it or not

• Approved Codes of Practice / Approved Documents: Well, if you don't follow them (particularly the HSE ones), you have to prove in court you did something at least as safe. This is a little counter to the "innocent until proven guilty" premise, but it's there in legislation all the same, and has been for too many years for anyone to say it's unfair.

• British Standards: Can be used in court as evidence. (What they don't explicitly say, is that it's evidence by BOTH sides, prosecution and defence).

• Industry Guidance ... is just that, good practice. But well worth doing all the same, because it might avoid any issues with 1 to 3 above, provided it doesn't conflict.

Wise words from Graham, but there is also a nuanced difference between an HSE ACOP and HSE legal advice. If you are prosecuted under H&S law and it is shown that you have failed to follow an ACOP, there is a rebuttable presumption of guilt. In other words, you have to show that what you did was safe; it is not for HSE to show that it was unsafe.


However, as far as the legal advice is concerned, you do not have to follow it, but if you did, there is a presumption of innocence.

This is how HSE puts it.