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Is it time to reverse the burden of Section 40 of the Health and Safety at Work etc. Act 1974?

30 April 2021

We explore the recent decision of the Court of Appeal in the case of AH Ltd & Anor, R. v [2021] EWCA Crim 359 and the reverse burden imposed on defendants by Section 40 HSWA.

Summary 

This case concerned an appeal by AH Ltd and Mr SJ , a director of the company, against the ruling of Judge Thornton on where the burden lies in proving ‘reasonable practicability’ under Section 40 of the Health and Safety at Work etc Act 1974 ("HSWA 1974").

AH Ltd and Mr SJ are due to stand trial in October 2021 for charges relating to the death of a resident at a nursing home owned and operated by the company. In 2015, a resident died after suffering serious burns when hot water was put in a bath by her carers. The prosecution case is that the death was entirely avoidable.

Both defendants have entered not guilty pleas to all counts and made a joint application at the outset for the case management hearing in January 2021 to be a preparatory hearing and for the judge to give a ruling as to where the burden lies of proving ‘reasonable practicability’ under Section 40 of the HSWA 1974. Judge Thornton handed down a decision in February 2021 finding in favour of the prosecution’s submissions setting out that the burden lies with the defendant. The company and Mr SJ have leave to appeal against this ruling.

Submissions

Counsel for the company based their submissions around the earlier case of Davies*. This case set out that it is for the defendant to prove, on the balance of probabilities, that it was not reasonably practicable for them to have done more. Counsel in this case argued that Davies should be reconsidered as it was wrongly decided for the following reasons:

  • ‘Reasonable practicability’ is an element of the offence, not a defence – parliament could have legislated for an absolute duty to ensure safety subject to a defence or reasonable practicability but did not do so;
  • Referring to it as a defence was a significant error in the court’s assessment of section 40 and its compatibility with the presumption of innocence;
  • Placing significant weight on the conclusion that the section 3 HSWA 1974 offence was a regulatory offence rather than a truly criminal offence is arbitrary and ought not to be sustained; and
  • The modern practicalities of investigating and prosecuting health and safety cases do not render proportionate a legal burden of proof on defendant. 

He continued that section 40 should be ‘read down’ to impose no more than an evidential burden on the defendant for a number of reasons, including:

  • Parliament is unlikely to have addressed its mind to the compatibility of s 40 with Article 6(2) (the right to a fair trial) of the ECHR when enacting the HSWA 1974.
  • Section 40 is an element of the offence. There is insufficient justification for departing from the usual principle that the prosecution should prove this issue.
  • “Reasonable practicability” relates to an objective state of affairs, rather than a defendant’s knowledge or belief in that state of affairs.
  • The Health and Safety Executive has adequate powers to fully investigate the facts relating to a potential breach of the legislation.
  • When the HSWA 1974 was passed, there were no adverse inferences available pursuant to ss 34 and 35 of the Criminal Justice and Public Order Act 1994.
  • Placing the legal burden of proving reasonable practicability upon the Crown would not inevitably result in it being unable to prove its case.
  • A defendant can be convicted and sentenced to imprisonment for up to two years despite the fact the jury is not sure of guilt. Consistently with the “golden thread” the defendant should receive the benefit of that doubt. Allowing the innocent to go free does not undermine the regulatory regime.
  • Reference to accident statistics in the workplace, should they be relied upon in support of a reverse burden, do not assist the Crown as other legislative provisions regarding public safety function exist with the Crown bearing the legal burden of proving the elements of the offence.

Counsel for Mr SJ took these points further on the basis that Mr SJ was an individual who, if found guilty, could be subject to a period of imprisonment. It was argued that when Davies was decided a custodial sentence could not be imposed in respect of an offence under Sections 3 or 37 of the HSWA 1974 as they were not introduced until the Health and Safety Offences Act 2008.

The prosecution submitted quite simply that the reverse burden and decision in Davies had been expressly approved by the House of Lords in the subsequent case of Chargot** and that this decision should not be deviated from. 

Commentary 

The Court of Appeal agreed with the prosecution and found that there is nothing disproportionate in the reverse burden imposed on defendants by Section 40. Despite arguably the compelling, and sensible, submissions made by counsel for both applicants the court ultimately felt that they were bound by the earlier decisions. This was particularly so because the court in Chargot approved the decision in Davies after the introduction of the custodial sentence for individuals charged with offences under HSWA. The Court ultimately felt that it was not open to a trial judge or the Court of Appeal to hold that Davies was wrongly decided and permission to appeal was refused. 

It might be thought that the introduction of the new sentencing guidelines in 2017  and the fact that imprisonment is now on the table for individuals would have been enough for the Court to reassess Davies and Chargot but this remains an argument for another day. Davies and Chargot are therefore still considered to be 'good law' and the reverse burden, putting the onus on defendant's to prove that they did all that was reasonably practicable, remains a proportionate and reasonable prospect in law. A defendant will still have to prove that they did everything that was reasonably practicable, meaning that they can still be convicted while reasonable doubt exists.

We however predict that this will not be the last word on this issue and we will be hoping that this comes before the court again in the near future. 

If you require any further information, please contact Simon Belfield

* R v Davies [2003] 
**   In Lord Hope's speech; R v Chargot [2008] 

Further Reading