Health and safety prosecutions - burden of proof and human rights
Section 40 of the Health and Safety at Work Act 1974 (“HSWA) provides that an offence 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 onus is on the accused to 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.
A recentpreliminary Crown Court ruling has interpreted the defendant’s requirement to “prove the limits of what is reasonably practicable in section 40 HSWA, as meaning no more than to give sufficient evidence to raise the issue. The ruling effectively changes the burden of proof requirements on the defendant under section 40 such that it is compatible with the requirements of Article 6(2) of the European Convention on Human Rights which provides that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
HH Judge Robertshaw, in a preliminary Crown Court ruling in the case of HSE –v- Klockner Moeller Limited on 17 May 2002, ruled, following submissions on how he ought to direct a jury at trial as to the effect of section 40 HSWA, that s.40 should be interpreted such that the burden on the defence on the issue of reasonable practicability is an evidential one requiring only that the defence “give sufficient evidence to raise the issue. The effect of the ruling is to reverse the burden of proof required under section 40 HSWA, so that once the defence has met the evidential burden the prosecution must prove guilt beyond reasonable doubt.
The ruling follows on from the decision in R-v-Lambert [2001] 3 WLR. 206, which considered the effect of Article 6(2) of the European Convention on Human Rights (“ECHR) which requires that only an evidential burden can be placed on a defendant. In R-v- Lambert the defendant appealed against his conviction of a drugs offence on the grounds that the trial judge’s direction that under the statute the legal burden of proof was transferred to the defendant was contrary to Article 6(2). The appeal was dismissed by the House of Lords on the grounds that the defendant could not rely on the Human Rights Act 1998 (“HRA) in relation to a conviction which predated the coming into force of the Act. However, in that case the defendant was challenging the trial judge’s direction and not the authority which had brought the proceedings and accordingly the appeal brought by the defendant was not a proceeding by or instigated by a public authority so he was not entitled to claim retrospectivity under section 22(4) HRA.
R-v- Lambert nevertheless highlighted the potential for courts to review transfer of burden of proof cases. As a consequence, the ruling in HSE –v- Klockner has rejected the legitimacy of the transfer of burden provisions under section 40 HSWA. In particular HH Judge Robertshaw stated that,
“The very essence and substance of the offence created by section 6 [referring to HSWA] is failing to take reasonably practicable steps to avoid risks to health and safety………..
Section 6 does not create an offence but make it subject to a special defence such as “reasonable excuse. Without section 40 the ordinary ground rules for a criminal trial would operate
He went on to say,
“I am not in doubt that section 40 represents an interference with the Article 6(2) right of the company. So it becomes necessary to consider whether that interference is reasonable and proportionate, balancing a defendant’s right to a fair trial with the interests of society in promoting safety, and avoiding accidents in the workplace.
The judge considered the if section 40 was interpreted on its ordinary meaning the burden of proof on the prosecution would be minimal and confined to formal, uncontroversial matters and that as a result the defendant company would be required to establish its innocence. He stated that,
“I remain unpersuaded that there is any pressing social need to reverse the normal rules which operate to ensure a fair trial. To require the prosecution to prove their case will neither send out the wrong message nor compromise the promotion of health and safety in the workplace. The reverse onus on an issue of reasonable practicability will continue to operate as a shield in civil actions for damages. It is right for different rules to apply dependent upon whether the outcome is punishment or compensation.
HH Judge Robertshaw made particular reference to the fact that the prosecution set out, with a degree of particularity, the steps they considered would have been reasonably practicable to avoid the particular accident to which the prosecution related. He considered there was no injustice in the prosecution being required to prove “that which they are prepared and able to allege with such particularity. He later went on to say,
“There is, in my judgement, no demonstrated proportionate need to impose on the defence a persuasive burden of proof. The imposition of such a burden would derogate fundamentally from the presumption of innocence. It raises the spectre of that which no criminal justice system ought, lightly to contemplate – a conviction where there exists a reasonable doubt as to guilt. Requiring the defence to adduce some evidence on the issue of reasonable practicability is sufficient to balance the rights and freedoms of a defendant with the wider interests of the community in promoting safe working environments. Such a burden is not a heavy one but nor is it negligible either.
The HSE intend to appeal Section 40. If HH Judge Robertshaw’s interpretation of Section 40 is upheld the whole process of HSE prosecutions will be affected leading to more extensive preparation of evidence and disclosure by the prosecution. The implications for defendants are not straightforward though: the threshold for meeting an ‘evidential burden’ in relation to what is reasonably practicable is not yet established and may still present a significant hurdle to be overcome in a successful defence.
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For further information, please contact Mark Tyler or Kajal Sharma at mark.tyler@cms-cmck.com or kajal.sharma@cms-cmck.com respectively, or alternatively by telephone on +44 (0) 20 7367 3000.
