Health and Safety at Work Act 1974 and the reverse burden of proof

The Statutory Burden

Section 40 of the Health and Safety at Work Act 1974 ("HSWA") places the burden of proof on an accused in offences consisting of a failure to comply with a duty or requirement to do something "so far as is practicable, or so far as reasonably practicable, or to use the best practicable means to do something". The Act provides that the accused must prove that it was not practicable, or not reasonably practicable to do more than was done, or that there was no better practicable means than that used to satisfy the duty or requirement.

The Court of Appeal decision in the case of Davies -v- Health and Safety Executive [December 2002] (currently unreported) appears to have settled conflicting decisions at Crown Court level as to whether the legal burden of proof requirements of section 40 is compatible with the Article 6 (2) of the European Convention of Human Rights which provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". The Court concluded that the legal burden of proof was not only justified but was also necessary and proportionate.

Trial Court Ruling

David Janway Davies was convicted at Sheffield Crown Court following the death of a subcontractor employed by him at his plant hire firm. Just before the accident Mr Davies told the subcontractor he could go home as there was no further work for him to do. Mr Davies then shouted to another employee to bring a JCB down to the workshop and park it up close to the truck on which the Mr Davies was working. The employee reversed the JCB, but as he approached the truck he had restricted visibility to the rear of the vehicle. The subcontractor was crushed between the two vehicles.

The defence argued that Mr Davies had done all that was reasonably practicable and that his instructions to reverse the JCB and the flashing lights of the JCB when in reverse should have alerted the subcontractor to the danger.

The trial judge ruled that section 40 was compatible with European Convention of Human Rights and them judge directed the jury that the appellant had a legal burden to prove that it was not reasonably practicable to do more than he had in fact done. At trial Mr Davies was convicted, fined £15,000 and was ordered to pay £22,544.32 prosecution costs. Mr Davies appealed on the point of burden of proof.

Court of Appeal Decision

On appeal, Lord Justice Tuckey referred to the ECHR decision in the case of Salabiaku -v- France (1988) 13 EHRR 379 para.28 in which it was stated:

"Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does however require the contracting [sic] States to remain within certain limits in this respect as regards criminal law…Article 6 does not therefore regard presumptions of fact or law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence".

Tuckey LJ went on to observe that in the field of health and safety the E.E.C. accept that it is possible to impose absolute duties on employees. He made particular reference to Article 5.1 of Council Directive 89/391/EEC which requires member states to provide that:

"The employer shall have a duty to ensure the safety and health of workers in every aspect related to work".

He noted that no requirement was placed on Member States to provide for any exclusion or limitations on employers responsibilities for occurrences resulting from unusual or unforeseen circumstances which go beyond the employer's control or to exceptional events, the consequences of which could not have been avoided despite the exercise of due care.

Tuckey LJ stated that, when considering whether a particular provision is within reasonable limits, the primary concern is not whether the defendant must disprove a particular element of an offence, but rather that he may be convicted while a reasonable doubt exists. He stated that:

"The court has to consider whether a fair balance has been struck between the fundamental right of the individual and the general interests of the community, paying due regard to the choice which the legislature has made when striking that balance, particularly where social or economic policy is involved"

In establishing where the balance lies the court considered the questions set out by Lord Hope in the case of R -v - Kebeline (2000) 2 AC 326, which concerned anti-terrorist legislation, as follows: (1) what does the prosecution have to prove in order to transfer the onus to the defence? (2) what is the burden on the accused? Does it relate to something which is likely to be difficult to prove, or does it relate to something which is likely to be within his knowledge or to which he readily has access ? and (3) what is the nature of the threat faced by society which the provision is designed to combat?

Tuckey LJ considered that an important factor in the balancing exercise was whether the legislation was regulatory or prescriptive. He referred to the cases of R v Lambert (2002) 2 AC 545 and R v Wholesale Travel Group (1991) 3 SCR 154 (Canadian Supreme Court) and made reference to the distinction made between truly criminal and regulatory offences as set out in the latter case. He went on to point out that offences created by sections 2 to 7 and 33(1)(a) of HSWA 1974 did not impose any risk of imprisonment and that this was " ..undoubtedly an important factor in deciding whether Parliament had struck the right balance in this legislation".

In relation to the second of Lord Hope's questions concerning the defendant's knowledge, Tuckey LJ considered that following an incident which might give rise to a prosecution the information about when and what steps have been taken will be known to the defendant but may not be known to the enforcing authority, especially in complex cases involving state of the art technology or complicated processes. He stated that "…in reality the defendant will be and remain the only person who really knows when and what he has done to avoid the risk in question".

Current State of the Law

The court determined that the imposition of a legal burden of proof in Section 40 HSWA was justified, necessary and proportionate for the following reasons:

(1) the HSWA is regulatory and its purpose is to protect the health and safety of those affected by the activities referred to in sections 2 to 6;

(2) the prosecution must first prove that the defendant owes a duty and that the safety standard has been breached. Once these matters have been proved the defence of reasonable practicality has to be raised and established by the defendant. Furthermore, the defence itself is flexible, as it does not restrict the way in which the defendant can show that he has done what is reasonably practicable;

(3) the reverse burden of proof takes into account the fact that duty holders under the Act have chosen to engage and be in charge of a commercial activity or work which is subject to regulatory controls. It is therefore justifiable to ask the duty holder to show that it was not reasonably practicable for him to have done more than he had in fact done to avoid or prevent a risk;

(4) the facts relied upon by the defence should not be difficult to prove as they are within the knowledge of the defendant. More particularly, in complex cases it may well only be the defendant that has the relevant expertise to assume this burden and therefore enforcement in these types of cases might become impossible if the defendant had only an evidential burden; and

(5) the defendant does not face imprisonment and therefore the consequences of a conviction might be newsworthy but are not the same as that involved "in truly criminal offences".

For further information please contact Mark Tyler on 020 7367 2568 or at mark.tyler@cms-cmck.com, or Kajal Sharma on 020 7367 2751 or at kajal.sharma@cms-cmck.com.