UK Offence Report

Contravention of The Control of Asbestos Regulations 2012

the instrument as a whole of The Control of Asbestos Regulations 2012

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

Contravening this instrument is an offence under section 33(1)(c) of the Health and Safety at Work etc. Act 1974. The instrument itself contains no offence-creating words.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
Not determined

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

Classifier’s reasoning: contravention offences of this kind are strict as to the breach; the fault position is governed by the parent Act and was not read from it.

What would breach the instrument as a whole?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Control of Asbestos Regulations 2012.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

the penalty is in the parent Act, not in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
27 February 2012
In force from
6 April 2012
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations revoke and replace the Control of Asbestos Regulations 2006 (S.I. 2006/2739 as amended by S.I. 2007/1573, 2008/960, 2008/2852 and 2009/716) and implement, as respects Great Britain— Council Directive 2009/148/EC (OJ No L330, 16.12.2009, p28) which repealed and replaced Council Directive 83/477/EEC (OJ No L263, 24.9.83, p25) as amended by Council Directive 91/382/EEC (OJ No L206, 29.7.91 p16) and Directive 2003/18/EC of the European Parliament and of the Council (OJ No L97, 15.4.03, p48) on the protection of workers from the risks related to exposure to asbestos at work; Council Directive 90/394/EEC (OJ No L196, 26.7.90, p38) on the protection of workers from the risks related to exposure to carcinogens at work (sixth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) as codified in Directive 2004/37/EC (OJ No 229, 29.6.2004, p23), insofar as it relates to asbestos; and Council Directive 98/24/EC (OJ No L131, 5.5.93, p11) on the protection of the health and safety of workers from the risks related to exposure to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) insofar as it relates to risks to health from exposure to asbestos. Part 1 of the Regulations re-enacts Part 1 of the Control of Asbestos Regulations 2006 with some amendments. Regulation 2 includes new definitions of “asbestos cement”, “asbestos coating”, “asbestos insulation”, “asbestos insulating board”, “short duration work” and “textured decorative coatings”. The definition of “relevant doctor” has been amended and there is also a new definition of “licensable work with asbestos”. The wording of regulation 3(2) has been amended to include the terms “in which only non-friable materials are handled” and “without deterioration of non-degraded materials” in regulation 3(2)(c)(i) and (ii) respectively. The licensing requirement has been de-coupled from the derogation and the reference to licensing has been removed from regulation 3. Part 2 of the Regulations re-enacts Part 2 of the Control of Asbestos Regulations 2006, and in addition to minor and drafting amendments makes changes of substance including the following— regulation 8 refers to licensable work with asbestos which is defined in regulation 2(1); regulation 9 makes different provision for notification for work with asbestos (which is not disapplied by regulation 3(2)), depending on whether the work is licensable work with asbestos or not; regulation 15 provides for certain arrangements to be in place regarding accidents, incidents and emergencies and makes it clear that different requirements apply if the work is licensable work with asbestos; regulation 22 provides for different requirements for medicals and health surveillance depending on whether the work is licensable work with asbestos or not. Part 3 of the Regulations re-enacts the prohibitions in regulation 26 of the Control of Asbestos Regulations 2006 and reflects amendments made by the REACH Enforcement Regulations 2008 (SI 2008/2852) and the prohibitions provided for by the REACH Regulations (Regulation (EC) No 1907/2006). Provision for exemptions is carried forward in regulations 29 and 30. It has been clarified in regulation 2 that the labelling requirements in regulations 14, 24(2) and (3) and 27 are the same as those provided for by Appendix 7 to Annex XVII of the REACH Regulations (OJ No L396 30.12.2006 p840). The requirements are still referenced in Schedule 2 for ease of reference and the relevant diagram has been included. Regulation 26(4) and Schedule 3 to the Control of Asbestos Regulations 2006 have not been re-enacted since the exception for chrysotile is provided for in Annex XVII to the REACH Regulations (OJ No L136, 29.5.2007, p131). Part 4 of the Regulations re-enacts the provisions of the Control of Asbestos Regulations 2006. Provision for exemptions is re-enacted in regulation 29(1) and for the validity of existing licenses and exemptions in regulation 32(1) and (2). Regulation 35 requires the Secretary of State to review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or be amended. A further instrument would be needed to revoke the Regulations or to amend them. Schedule 1 has been amended slightly, the requirements in paragraphs (b)(ii) and (iii) have been merged to better reflect the requirements of Article 4 of the Directive. European Standards EN ISO/IEC 17020 “General criteria for the operation of various types of bodies performing inspection” accepted by CEN/CENELEC on 15th July 2004 and 17025 “General requirements for the competence of testing and calibration laboratories” accepted by CEN/CENELEC on 15th March 2005 can be obtained from the British Standards Institution, BSI Library and Bookshop, 389 Chiswick High Road, London W4 4AL, or through British Standards Online at www.bsonline.bsi-global.com. The publication “Determination of airborne fibre concentrations. A recommended method, by phase-contrast optical microscopy (membrane filter method)”, WHO Geneva 1997 (ISBN 92 4 154496 1) can be obtained online at www.who.int/publications/. A full impact assessment of the effect that these Regulations will have on the costs of business is available from the Health and Safety Executive, Redgrave Court, Merton Road, Bootle, Merseyside L20 7HS. A copy of the transposition note in relation to implementation of the Directives set out in paragraph (1) can be obtained from the Health and Safety Executive, International Branch, also at the Redgrave Court address. Copies of both these documents have been placed in the Library of each House of Parliament and are annexed to the Explanatory Memorandum which is available alongside these Regulations at www.legislation.gov.uk.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.70.

Basis
the penalty comes from the enabling Act rather than from this instrument
Confidence
0.70 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source