The heading of this video is called ‘You Don’t Need Training Because You Can Use Force Under Common Law’, because during my career in my chosen field, spanning almost thirty years, I have heard the same statement in virtually every industry sector.
However, this statement is not only misleading, it is also illegal, and that’s what I intend to explain in this blog post.
But to do that fully we first need to understand the difference between the Common Law and Statute Law.
The Difference Between Common and Statute Law.
Statute Law (also referred to as primary legislation) is an Act of Parliament.
For something to become a statute Act of Parliament it will have had to have been approved by both the House of Commons and the House of Lords and been given Royal Assent by the Monarch.
An Act, being primary legislation, must be adhered to and acting contrary to it is known as ‘breaking the law’.
An example of this is the Health and Safety at Work Act 1974. This is the primary piece of legislation covering occupational health and safety in Great Britain.
The Health and Safety Executive, with local authorities (and other enforcing authorities) are responsible for enforcing the Act (and other Acts relevant to the working environment).
With regards to the use of force for self-defence or physical restraint, the Acts of Parliament (primary legislation) that exist are Section 3(1) of The Criminal Law Act 1967 and Section 76 of the Criminal Justice and Immigration Act 2008.
Common Law
Common Law is made by judges and developed through the decisions of the courts.
The main difference is that statute law (Act of Parliament) dictates what the law is, whilst case law (Common Law) clarifies its effect and therefore gives it meaning. Sometimes, there is no statute on a specific aspect of law. Murder is a perfect example. Despite this being the most serious of criminal offences, murder remains a common-law offence.
So when a case goes to court the process (generally speaking) starts with the statute law (to find out what the law says), and then look at relevant case judgments under that law to determine what the scope of the law is and whether what is being alleged has been upheld or breached.
Both, the common law and statute law, are equally important, but statue law, being primary legislation sits above common law meaning that judges must follow an Act of Parliament.
An example of this can be seen in both section 3(1)…… and section 76 …. both of which setts out that a person may use reasonable force in certain circumstances. What amounts to reasonable force has been clarified over the years in numerous cases (common law).
So Back To The Opening Statement – ‘You Don’t Need Training Because You Can Use Force Under Common Law’.
As mentioned I have had people contact me who tell me that certain people in their organisations are stating that staff don’t need any formal training in physical restraint because they already have the right to use force under common law.
The law on self-defence does arise under the common law. However, many of the common law decisions have been incorporated into Section 76 of the Criminal Justice and Immigration Act 2008. This statute Act of Parliament now provides clarification of the operation of the existing common law and statutory defences.
Another Act of Parliament that also relates to the use of force is Section 3(1) of the Criminal Law Act 1967 (use of force in the prevention of crime or making arrest).
Furthermore, if someone is expected to use physical force to control others or defend themselves then the Health & Safety at Work Act 1974 is another primary piece of legislation that the organisation is legally bound to comply with.
Under section 2(2)(c) of the HSAWA, it is a duty that the employer provides “the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees”.
Furthermore, the ‘Management of Health & Safety at Work Regulations 1999’, provides further regulatory guidance to the ‘Act’ making employers responsible for ensuring that staff have the capability to do their job.
For example, the Regulations make it a requirement that employees are provided with adequate training and that any training should be repeated periodically where appropriate and be adapted to take account of any new or changed risks to the health and safety of the employees concerned.
In summary therefore, an organisation cannot legally not train its staff and just expect them to act under common law and to use their own discretion and judgement in the absence of suitable training.
In short, they would be acting illegally.