Words: Bridget leathley
Whereas Burglar Bill has to be assumed to be innocent until proven guilty, under Sections 2 or 3 of the Health and Safety at Work (HSW) Act an organisation is automatically regarded as having failed to ensure the health and safety of employees or others if an accident has occurred. As Lord Hope of Craighead explained in the House of Lords judgment on R v Chargot Ltd: “The onus then passes to the defendant to make good the defence which Section 40 provides on grounds of reasonable practicability.”
Section 40 of the HSW Act makes it clear that “it shall be for the accused to prove … 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”.
This “reverse burden of proof”, as it is known, was challenged in a case against the Health and Safety Executive in 2002, as being incompatible with the European Convention on Human Rights.
Concluding that Section 40 was legal, Lord Justice Tuckey reminded employers: “Dutyholders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it … and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it.”
Demonstration of “reasonable practicability” was described in A is for ALARP (IOSH Magazine February 2016). Last month, in F for foreseeability, we saw that a possible defence against guilt is that an accident was not foreseeable by the dutyholder. Such a defence was used in the case of R v North Yorkshire County Council in 2010 when the local authority was charged with Section 2 and 3 offences after the death of 14-year-old Joe Lister on a school trip.
Lister drowned when water surged from a reservoir and into some caves the party was exploring at a council-run outdoor education centre. Rain had fallen for two weeks before the trip, and a phone call to the reservoir to check whether water was rushing into the caves would have been entirely practicable. However, the judge agreed that the “unprecedented” water levels were not foreseeable and, though the council had failed to ensure Joe’s safety and there was a reasonably practicable set of measures that could have been taken (and have been adopted since), it was found not guilty due to lack of foreseeability.
Employers should not take too much comfort from this – more recent cases seem to expect more foresight, as we saw last month in the Veolia and Corus cases.
An employer is often in a position of not knowing its level of guilt until it has investigated the circumstances of the incident
Remember that, though “I’ve never had an accident in 25 years running this place” is used as an excuse for not improving, there does not have to be an accident for an organisation to be guilty. Breaches of other sections of the HSW Act, plus specific requirements of safety and health regulations – such as those on risk assessments or the inspection of lifting equipment, can result in a prosecution without any harm being caused.
Whether there has been harm or not, an employer is often in a position of not knowing its level of guilt until it has investigated the circumstances of the incident and its lawyers have reviewed the evidence.
The Sentencing Council’s February 2016 draft guideline, Reduction in Sentence for a Guilty Plea, would allow a one-third discount in penalties only if a guilty plea is made at the first opportunity. Though this provision makes sense to discourage Burglar Bill from wasting court time, this will complicate matters for organisations.
Another of Lord Justice Tuckey’s remarks in the Section 40 challenge suggested he at least did not acknowledge this: “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.”
In the case of a small organisation with a single controlling mind this might be the case, but in larger ones the people deciding on the plea could be remote from the control of the workplace, and be unsure until later in the trial as to whether more could have been done.
Vicarious liability – more on this when we get to V in the series – makes this assessment of guilt even more difficult; if an injury occurs because a supervisor failed to follow the rules it could take some time to work out whether a guilty plea is appropriate.