Product Safety Criminal Liability for unsafe products Oliver

Product Safety: Criminal Liability for unsafe products. Oliver Campbell QC & Toby Riley-Smith QC

Topics • Product Safety Legislation • Safety Regulations: Sectoral and General • S 6 Health and Safety at Work etc Act 1974 • Sentencing principles • Other drivers for product manufacturers and suppliers • Civil claims • Reputational damage

Product Safety Regulations EU’s Two-tiered approach • Sector Specific (or Sectoral) Safety Regulations • General Product Safety Regulations 2005

Sectoral Safety Regulations Scope • 20+ sectoral safety regulations • Examples: • Construction Products Regulations 2013 • Lift Regulations 2016 • Electrical Equipment Safety Regulations 2016 • Apply to products used at work / in commercial premises as well as consumer products

Sectoral Safety Regulations • • Common features Essential requirements/standards of safety Mechanism to demonstrate conformity Requirement for declaration of conformity and CE Market surveillance and product recall obligations

Sectoral Safety Regulations Enforcement ~ Principles • Enforcement authorities: • Specific regulators (MHRA/HSE) • Trading Standards • Principles of enforcement: • Enforcement concordat • Prevention is better than cure • Home authority

Sectoral Safety Regulations Enforcement ~ Powers • Investigatory powers • Safety Notices: • Prohibition • Suspension • Requirement to warn • Withdrawal • Recall • Forfeiture and destruction • Appeals (21 days)

Sectoral safety regulations • • • Offences Not all breaches are offences Common offences: • failure to conform with essential product requirements • contravention of CE marking provisions • failure to comply with information provisions • failure to comply with safety notice Director/manager liability: consent, connivance, neglect Presumption of conformity Due diligence defence Maxima ~ Indictment: 12 months/£ 20, 000, Summary: 3 months/level 5

General Product Safety Regulations 2005 Introduction • Catchall regime for consumer products • Consumer Products include all goods that are or could be placed on the market or supplied or made available to consumers for their private use. • Includes products that can migrate to the consumer market

General Product Safety Regulations 2005 Safety Requirement • A “safe” product is one which, under normal or reasonably foreseeable conditions of use, does not present any risk or only the minimum risk compatible with its use and which is considered to be acceptable and consistent with a high level of protection for the safety and health of persons • Relevant factors: • characteristics • instructions for assembly, maintenance and use • labelling, warnings, Information • Presumption of safety if compliant with standards

General Product Safety Regulations 2005 Types of Supplier • “Producer”: • manufacturer or own brander based in the EU • EU agent or representative of manufacturer outside EU • first importer into the EU • supplier who affects the safety of the product (storage, modification, incorporation) • “Distributor”: supplier whose activities do not affect the safety properties of the product (wholesaler, retailer)

General Product Safety Regulations 2005 • • • General obligations Products are safe Consumers have relevant information and warnings Risk are identified Appropriate corrective action is taken Competent authorities notified of unsafe products

General Product Safety Regulations 2005 Specific Obligations Producers • only place safe products on market • provide relevant information to enable consumers to assess risks • take precautions to avoid risks • carry out market surveillance • take necessary corrective action Distributors (within the limits of their activities) • ensure products are safe • traceability documentation • monitor the safety of products • pass on information about product risks

General Product Safety Regulations 2005 Enforcement • Principally by local trading standards authorities • Same broad powers as for Sectoral Safety Regulations

General Product Safety Regulations 2005 Offences • Producer • place unsafe product on market; • failed to provide prescribed information; • Distributor • possess product known or presumed to be dangerous; • failed to participate in monitoring • Both: failure to notify enforcement authority • Anyone: contravention of safety notice • Directors/manager: consent, connivance, neglect • Due diligence defence • Same maxima as Sectoral Safety Regulations

s. 6 HSWA 1974 Imposes duty on any person who designs, manufactures, imports or supplies any article for use at work: a) to ensure, so far as is reasonably practicable, that article “is so designed and constructed” that it will be safe; b) to carry out or arrange such testing and examination as may be necessary to ensure it is safe; c) to take such steps “as are necessary” to secure that persons supplied with the article are provided with “adequate information”; and d) to take such steps as are necessary to secure, so far as is reasonably practicable, that persons are provided with revisions of product information on something becoming known which gives rise to a risk.

s. 6 HSWA 1974 All duties under s. 6 qualified by: • s. 6(7): duty only extends to matters within dutyholder’s control; • s. 6(8): where dutyholder receives a written undertaking that a third party has taken specified steps to ensure the product will be safe, that relieves the dutyholder of his obligations “to such extent as is reasonable having regard to the terms of the undertaking. ”

s. 3 HSWA 1974 General duty under s. 3 of HSWA may well also be relevant to a manufacturer or producer; for example: • where the producer installs a product / machine; or • provides training in relation to the product / machine. Will often be simpler for a prosecutor to bring a charge under s. 3 than s. 6.

Sentencing Guidelines • No sentencing guidelines for offences under the General Product Safety Regulations. • Definitive Guideline in relation to Health and Safety Offences does not apply to offences under s. 6 of HSWA.

Civil Liability • Consumer Protection Act 1987: imposes no fault civil liability on producers and suppliers in respect of products which are defective. • A product is defective “if the safety of the product is not such as persons generally are entitled to expect”. • Definition of an “unsafe product” for the purpose of the GPSRs not the same as a “defective product” under the CPA. • Concepts of defect and safety comprehensively reviewed in Gee v Depuy [2018] EWHC 1208 (Andrews J).

Reputational damage • Damage to reputation of product, brand or organisation • Effect on sales figures • Existential threat • Major driver

Product Safety – Criminal Liability for unsafe products. Oliver Campbell QC & Toby Riley-Smith QC Henderson Chambers 2 Harcourt Buildings Temple London EC 4 Y 9 DB Tel: 020 7583 9020 clerks@hendersonchambers. co. uk www. hendersonchambers. co. uk © (Copyright here…)