by Joanne Caffrey, Expert Witness in the use of force & management of challenging behaviour
When someone accuses you of “breaching the rules”, what exactly have you breached? Is it the law or is it their training package / assessment sheet?
Understanding the difference can prevent a lot of unnecessary expenditure and protocol, diverting you from correctly identifying legal obligations and risk.
As an Expert Witness acting for you, this is a key area I need to identify with you as soon as possible.
I am often faced with clients in confusion concerning the law and are completely confused by numerous people giving different opinions. Typically they get told “it’s the rules, you have to do it this way or you will get sued”.
My full paper on this topic aims to generally explain the hierarchy of legislation and guidance and what it means to you in reality from your liability point of view and priority in schemes of implementation, and is a key corner stone to many future papers in our “Making sense of the law “series.
ACTS are pieces of statutory legislation passed by Parliament. This is law. This is the primary legislation. Breaching of an ACT creates liability enforceable by the judicial system (courts). However, every ACT of offence also creates in law legal DEFENCES.
So ACTS are primary/statutory legislation and examples include:
The Health & Safety at Work Act
The Human Rights Act
The Road Traffic Act
Offences Against the Person Act
Police and Criminal Evidence Act
Are subordinate to ACTS. They are linked to an existing ACT and they aim to aid a person to apply the principles of the primary ACT. These are formal
guidelines and breaching them is not 100% enforceable in the courts unless the breach is linked to the legislation offence of the ACT, and there was no defence under the Act applicable.
Examples of regulations include:
First Aid at Work Regulations
The Management of Health & Safety at Work Regulations
Fire Safety Regulations
For example on page 2 of the First Aid at Work Regulations HSE book L74 it states “This guidance is issued by the Health & Safety Executive. Following the
guidance is not compulsory, unless specifically stated, and you are free to take other action”
Acts and Regulations
may on first encounter appear to be the same thing and equal but they are legally not the same thing and are not equal.
There are no RULES as acts of parliament.
Underneath acts and regulations then sits formal national guidance and often is called Guidance or
Codes of Practice.
Examples of these are:
Police & Criminal Evidence Act Code of Practice
HSE First Aid at Work Approved Code of Practice
Dept of Education Guidance on XXX
A breach of guidance or codes of practice is not necessarily an offence and would need to be directly linked back to the primary ACT offence.
Underneath these we then have individual organizational policies and procedures based upon the 3 areas listed above. However, what often happens is people
making the policy or procedure are not legally trained and misinterpret the hierarchy. Policies and procedures then become prescriptive with comments such as “you must”.
Assessment criteria are then created based upon the policy and procedure so the assessors are then assessing based upon contaminated criteria, with the added challenge of informing the assessed people what they are doing / not doing is against the law, when in reality what they are doing / not doing is against a particular point of guidance or policy, not contravening any Acts or Regulations.
The next aspects we need to consider are:
Case law / stated cases e.g. criminal cases
Case reviews e.g. safeguarding cases
Prosecution / charging standards
The law is not easy to understand which is why wehave a judicial system containing the likes of Judges, Barristers, Solicitors, Experts.
When someone accuses you of “breaching the rules”, what exactly have you breached?
Is it the Statutory law or is it their training package / assessment sheet?
You can download my full white paper on this topic by visiting:
About Joanne Caffrey
Joanne is a former police officer with 24 years experience. She served 6 years as a custody sergeant then specialised in custody training. She wrote and delivered the first national Safer Detention training and received a British Excellence in Policing award which this contributed to. She also wrote and delivered the Professionalising Investigation Programme (PIP) training.
She has recently been involved in training with the IPCC (Independent Police Complaints Commission)
She currently works with over 200 schools delivering training concerning the management of challenging behaviour in schools from pupils. She has worked with BBC Radio 4 File on Four investigations concerning the use of force in schools. She has worked on cases as an Expert for prison suicides, police custody procedures, school physical intervention incidents.
She works as an advisor concerning child protection and safeguarding issues connected to the management of challenging behaviour
Joanne has trained as an Expert Witness with Bond Solon Legal Training in conjunction with Cardiff University Law School