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

2. Topics
Product Safety Legislation
Safety Regulations: Sectoral and General
S6 Health and Safety at Work etc Act 1974
Sentencing principles
Other drivers for product manufacturers and suppliers
Civil claims
Reputational damage

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

4. 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

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

6. 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

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

8. 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

9. 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

10. 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

11. 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)

12. 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

13. 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

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

15. 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

16. 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.

17. 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.”

18. 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.

19. 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.

20. 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).

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

22. Product Safety – Criminal Liability for unsafe products.
Oliver Campbell QC & Toby Riley-Smith QC
Henderson Chambers
2 Harcourt Buildings
Temple
London EC4Y 9DB
Tel:
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