1.1. S40 HSWA and Individuals2. S40 HSWA and Companies
Sara Lawson QC
Red Lion Chambers
2 Bedford Row
We tried to split up this debate between individuals and companies – but fundamental arguments for retaining s40 can apply to both.
We have therefore taken the basic justifications and applied them to both.
There are of course certain nuances relating to individuals, not least imprisonment, but the law applies to both.
3.The fact that companies cannot be imprisoned and individuals can is, of course, a factor to be taken into account when considering these motions.
But that does not stop a large swathe of criminal law from imposing reverse burdens.
Public protection is at the heart of the argument…..
4.The Presumption of Innocence
Article 6 ii
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.”
5.The Law on s40 HSWA
40. Onus of proving limits of what is practicable etc.
“In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.”
6.Criminal law and personal defendants
HSE (and CPS) prosecutions are part of the criminal process, even though HSE cases are not in Archbold. They are criminal trials.
Criminal law is littered with cases where defendants have to prove their innocence.
Money laundering cases and confiscation proceedings…
There are also many strict liability offences. Eg driving cases…
7.Reverse Burdens in Reality with Juries
If you are defending a murder, sometimes the facts can lead to a reverse burden in reality.
The other reality - Do juries pay attention to legal directions or just do what they think is just?
As a general rule, cases where individuals have to prove something relate to offences which Government (and Parliament) regard as very serious or important.
Maintaining and protecting health and safety in the workplace is of paramount importance.
Catching money launderers, depriving drug dealers of their proceeds etc are important and have reverse burdens in order to make it easier for the Crown to get convictions and thus act as a powerful deterrent. … So it is in HSE cases.
9.Public policy dictates that legislation protects the public from risks to health and safety.
The first aim is compliance but enforcement is sometimes needed.
Companies and individuals who undertake dangerous work have higher standards because of greater risks.
10.Public Policy v Individuals
11.“In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime”
Lord Woolf- AG of Hong Kong v Lee Kwong-Kut  AC 951
12.I argue that H&S law enforcement IS serious crime – just as with murder and terrorism, the risk of harm is usually death or serious injury and many people could be affected. Therefore, as Parliament has decided, it merits a reverse burden.
Even if there are not victims, there are potential victims.
In my submission there is no justification for changing that (for individuals or companies).
13.“Article 6(2) does not . . . regard presumptions of fact or of 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”.
Salabiaku v France 13 EHRR 379 (1991)
14.Lord Bingham in Sheldrake v DPP  1 AC 264
“The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end.
The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary.
It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea.
But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable.”
15.Other Reverse Burdens
Section 101 Magistrates’ Court Act 1980
“Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification.”
16.Lord Bingham in Sheldrake v DPP  1 AC 264
“Relevant to any judgment on reasonableness or proportionality will be (1)the opportunity given to the defendant to rebut the presumption, (2)maintenance of the rights of the defence, (3)flexibility in application of the presumption, (4)retention by the court of a power to assess the evidence, (5)the importance of what is at stake and the (6)difficulty which a prosecutor may face in the absence of a presumption.
The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”
Lord Nicholls in Johnstone  1 WLR 1736
“Taking all the factors mentioned above into account, these reasons justify the loss of protection which will be suffered by the individual.
Given the importance and difficulty of combating counterfeiting, and given the comparative ease with which an accused can raise an issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he honestly and reasonably believed the goods were genuine.”
18.HSE cases – a very brief history
R v Board of Trustees of the Science Museum  1 WLR 1171,  3 All ER 853
Steyn LJ, Garland J, Rougier J. 9/3/93
“Subject only to the defence of reasonable practicability section 3(1) is intended to be an absolute prohibition. Bearing in mind the imperative of protecting public health and safety so far as it is reasonably practicable to do so, the result can be faced with equanimity.”
“The prosecution case revealed an ever present risk of LP escaping from the appellants’ cooling towers.” ... “The truth of the matter is that the only possible answer to the charge was the defence that the appellants had taken reasonably practicable steps to minimise the risk.” The burden rested on the defence to prove that.”
19.R v Associated Octel Co Ltd  4 All ER 1051 Stuart-Smith LJ, Kay J, Dyson J. 19/7/94
Duty owed to other people’s employees also covered contractors used for cleaning etc.
There is a prima facie liability subject to the defence of reasonable practicability.
P293 at C, “If there is a risk of injury to the health and safety of the persons not employed by the employer, whether to the contractor’s men or members of the public, and a fortiori if there is actual injury as a result of the conduct of that operation, there is prima facie liability, subject to the defence of reasonable practicability.”
P293 at E, “But the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work.
And he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.”
At G. “But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken.”.
P294 at A, “The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors.”
20.R v Chargot Ltd  UKHL 73 Lord Hope - risk to dumper truck driver
R v EGS Ltd  EWCA Crim 1942 Dyson LJ, Davis J, Lloyd-Jones J. 8/10/09 Duty owed to other people’s employees. Sub contractor on newly built flat supplied faulty gates which crushed a visitor to death.
At para 18 – “The judge…recognised the decision of the House of Lords in R v Chargot Ltd .. was highly relevant to the issue that he had to decide. ... A central question was whether the prosecution had to identify the acts or omissions …The House of Lords held that all that was required was the prosecution prove that the result described in the statutory provisions had not been achieved or prevented (as the case may be) whereupon the onus passed to the defendant employer to establish, on a balance of probabilities, that it was not reasonably practicable for the employer to do more than he did to achieve the required objectives of health and safety.”
At para 21 quoting Lord Hope on proportionality: “The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material…It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.”
R v Polyflor Ltd  EWCA Crim 1522 18/7/14
Fulford LJ, Foskett J, HHJ Ford QC. [Per Foskett J paragraph 28 onwards.]
The Court of Appeal applied the Tangerine and Chargot cases in considering the submissions of counsel for the appellant that no material risk was established on the evidence at the close of the prosecution case.
The Court accepted the arguments of prosecution counsel that for the case to go to the jury the prosecution, “only had to adduce some evidence of exposure to risk – in other words, some evidence that an employee was...exposed to a possibility of danger. Once that is established the onus shifts to the Appellant to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was...not exposed to such risk. He submits that the prosecution does not have to prove that a particular accident was foreseeable and equally says that causation is not an element of an offence under section 2(1)...In our judgement, that does represent an accurate summary of the law. Furthermore...the creation of a material risk by the carelessness (including gross carelessness of an employee) remains a material risk for this purpose.”
22.Killer points against the motion re individuals
The Law is on our side
Public policy is on our side
Infringement of the rights of individuals is justified for the safety of society as whole.
The greater good.
These individuals are running businesses, employers or self employed and are generally taking part (or getting their employees and sub-contractors to take part) in potentially dangerous work.
Every case depends on its facts and it is up to the jury to decide what is reasonable in all the circumstances of each case.
24.Reverse Burdens – General Crime
Lambert  2 AC 545- Misuse of Drugs Act 1971- Incompatible/Retrospectivity
L v DPP  QB 137- CJA 1988 bladed article- Compatible
Johnstone  3 All ER 884- Trade Marks Act 1994- Compatible
Williams  2 All ER 787- Fire Arms Act 1982 s1(5)- Compatible
25.R v Lambert  2 AC 545
Lord Steyn- Proportionality-
“The burden is on the state to show that the legislative means adopted were not greater than necessary.
Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice.
The first is to impose a legal burden of proof on the accused.
If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary…
The second is to impose an evidential burden only on the accused.”
26.AG Ref (1 of 2004) 1 WLR 2111
Lord Steyn v Lord Nicholls
Insolvency Act 1986
Protection of Eviction Act 1977
Homicide Act 1957
27.Reverse Burden s40
Janaway Davies  EWCA 2949 Tuckey LJ
“The facts relied on in support of the defence should not be difficult to prove because they will be within the knowledge of the defendant.
Whether the defendant should have done more will be judged objectively…
If all the defendant had to do was raise the defence to require the prosecution to disprove it, the focus of the statutory scheme would be changed.
The trial would become focused on what it was the enforcing authority was saying should have been done rather than on what the defendant had done or ought to have done which is what Parliament intended.”
28.Reverse Burden s40
Janaway Davies  EWCA 2949 Tuckey LJ
“Last but not least the defendant in cases where the reverse burden of proof applies does not face imprisonment.
The offence involves failure to comply with an objective standard.
The consequences of such failure may be newsworthy in some cases but the moral obloquy is not the same as that involved in truly criminal offences.”
29.REVERSE BURDEN- S40
R v Chargot Limited  UKHL 73 Lord Hope-
“It seems to me that the situation in which the reverse burden imposed by section 40 of the 1974 Act arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility.”
30.REVERSE BURDEN- S40
R v Chargot Limited  UKHL 73 Lord Hope-
“I would hold that the placing of a legal burden of proof on the employer in the case of this legislation is not disproportionate.
The penalties that may be imposed on an individual have now been increased…
But I do not think that, when account is taken of the purposes that this legislation is intended to serve, this alteration in the law renders what was previously proportionate disproportionate.”
31.Health and Safety Policy
What if any steps taken to reduce risks is primarily within the knowledge of the Company and its Officers.
The fact that the burden is on the defendant to prove that the steps taken make out the due dilligence defence in itself nudges businesses into better record keeping and better compliance