Defending prosecutions for placing on the market or supplying unsafe products

Jim has over 29 years' experience of advising clients, including natural persons and corporations, unincorporated bodies, partnerships, limited liability partnerships and trusts, in relation to potential criminal liability arising from their business activities; product safety is an area where such liability can and does arise and if you place on the market or supply unsafe products you need a solicitor, like Jim, to help you navigate the wide regulatory framework (consisting of both national and European-derived legislation) to which you are subject:

• If you are a producer (importer, manufacturer, own-brander, re-conditioner, etc) then you are responsible for ensuring your products are safe (regulation 5 of the General Product Safety Regulations 2005) and carry adequate instructions and warnings for consumers to use them safely (regulation 7 of the General Product Safety Regulations 2005);
• If you are a distributor (wholesaler, retailer, etc) you must not supply goods that you believe are dangerous. You are required to monitor the safety of the products you supply, passing on information to the producer and cooperating with them if they advise you of a problem (regulation 8 of the General Product Safety Regulations 2005). The legislation also requires you to retain records of supply, which must be kept for six years.

If you are a producer or distributor and discover that a product that you have placed on the market or supplied poses safety risks to consumers then you are required to immediately notify the relevant enforcement authority; this will usually be you local trading standards authority, but:

• For safety problems with vehicles, the enforcement authority is the Driver and Vehicle Standards Agency (DVSA);
• For medicines and medical devices, the enforcement authority is the Medicines and Healthcare Products Regulatory Agency ("MHRA");
• For some product-specific regulations, such as machine safety, where the products are used in the workplace, the Health and Safety Executive ("HSE") is the relevant enforcer.

The penalties for failing to comply with the regulations can be severe, including imprisonment of up to 12 months for private individuals and an unlimited fine in the case of an organisation. If you are aware you may be under investigation, contact Jim for timely specialist advice and representation. You may have a defence, and seeking Jim's advice early may make all the difference to the outcome of your case.

Relevant case law in relation to product safety

[2016] EWCA Crim 1236

CA (Crim Div) (Treacy LJ, Warby J, Judge Bevan QC)

19 July 2016

A criminal behaviour order prohibiting an appellant from sourcing and selling vehicles was clearly justified and appropriate and its imposition, despite the absence of notice, was not unfair. However, the ten-year period of the order was reduced to seven years.

DC (Kennedy LJ, Butterfield J)

22 March 2000

Section 75 Road Traffic Act 1988 did not constitute a "specific provision in rules of Community law" for the purposes of reg.3(c) General Product Safety Regulations 1994, and hence the council had properly brought proceedings against the defendant under the Regulations for the supply of a motor car which was so defective as to be dangerous.