Health and Safety - Scottish Construction Contracts - page 443

In the case of an improvement notice, the bringing of the appeal has the effect of
suspending the operation of the notice until the appeal is disposed of. In the case of a
prohibition notice, the bringing of the appeal has that effect only if, on the application
of the appellant, the tribunal so directs. Essentially, without such a direction from the
tribunal, an appeal against the prohibition notice does not suspend the operation of
the notice.
20.3.11 Section 33
Section 33 of the 1974 Act sets out offences. The provision is both extensive and
complex.
Seventeen separate offences are set out in s.33(1). hese include failing to discharge
a duty imposed by sections 2-7 of the 1974 Act; contravening any health and safety
regulation; contravening any requirement imposed by an inspector; obstructing
inspectors in the exercise or performance of their powers or duties; contravening
any requirement or prohibition imposed by an improvement notice or a prohibition
notice; and falsely pretending to be an inspector.
Penalties for offences under the 1974 Act are now prescribed by Schedule 3A to the
Act. In terms of monetary penalty, on conviction on summary complaint (i.e. a judge
sitting without a jury), for the majority of offences, the maximum fine is presently
£20,000. On conviction on indictment (i.e. by a jury), the available fine is unlimited.
Imprisonment is an option open to the court in certain circumstances. On sum-
mary conviction, the maximum available term is one of twelve months. On conviction
on indictment, the maximum available term is two years.
20.3.12 Section 37
The provisions of Section 37 are worthy of note. Where an offence under any of the
relevant statutory provisions committed by a body corporate is proved to have been
committed with the consent or connivance of, or to have been attributable to any
neglect on the part of, any director, manager, secretary or other similar officer of the
body corporate or a person who was purporting to act in any such capacity, that per-
son, as well as the body corporate, shall be guilty of that offence and is liable to be
proceeded against and punished accordingly. An example of this is Armour v. Skeen
(1977).
20.3.13 Practicable and reasonably practicable
The concepts of 'practicability' and 'reasonable practicability' arise regularly in both
the 1974 Act and also in many health and safety regulations made under the 1974 Act.
It is, in fact, the latter concept that is much more commonplace.
Neithertermisdeinedinthe1974Act,orelsewhere.he Oxford English Dictionary
definition of 'practicable', i.e. that which is capable of being carried out in action or