Posted By Cormac
I read this with interest only just now and found this info on the HSE web site recently as a result of trying to find the answer to this exact question. The HSE web site was very helpful and I suspect that once the facts of the case are established by the prosecution (beyond reasonable doubt), it is then for the defendant to prove (on the balance of probabilities - because it is a reverse burden scenario)they did all that was reasonably practicable, where that legal qualification is stipulated in the section of the act or under a particular regualtion being determined. I was quite surprised to see that under section 40 because it is a reverse burden scenario, the defendant only had to establish their innocence on the balance of probabilities (a civil law scenario) rather than beyond reasonable doubt (a criminal law scenario).
Hope this helps and sorry if it has already been answered elsewhere.
http://www.hse.gov.uk/en...de/court/rules/prove.htm Proving the Offence
Rules of Evidence
Trial process
Proving offence
Key rules
What is Evidence?
Fact finding in the trial
The burden of proof
"Reverse burdens"
Legal and evidential burdens
Advance rebuttal
What is Evidence?
1. Evidence is information that may be presented to persuade the court of the probability of the truth of some fact asserted in the case, i.e. information by which facts tend to be proved or disproved.
Fact finding in the trial
2. Facts at issue in criminal cases are those that the prosecution must prove if it is to succeed, together with any facts that the defendant may wish to raise in his/her defence. The facts that the prosecution must prove are all the elements of the offence. Examples of facts that may need to be proved are:
o the identity of the defendant;
o whether the defendant is an employer;
o whether the defendant owes a statutory duty for the undertaking in question.
3. The elements of an offence equate to entries on the evidence matrix on the word-processed prosecution report template.
4. A trial is a fact-finding exercise and, with its verdict, the court makes a decision as to whether facts are proved. Fact finding might appear to be straightforward: the two parties come before the court with their versions of the facts in dispute, whereupon the court embarks upon a discovery of the truth by taking into account all relevant evidence put before it. However, there are rules that govern the way the court reaches its verdict - rules of evidence, such as the hearsay rule, and rules of procedure. These rules are necessary to ensure that a defendant is not unfairly convicted i.e. to ensure that a fair trial takes place.
The burden of proof
5. The burden of proving the guilt of the defendant lies on the prosecution, who must prove the particulars of the offence beyond reasonable doubt, i.e. so that the jury or magistrates are sure.
6. A key question for consideration is which party has the obligation, i.e. "the burden", to prove the different facts in issue. A court will look primarily at the wording of the statutory provision when making this decision.
7. The words "shall" or "shall not", used in statutory provisions, impose an absolute obligation to do, or not to do, the act in question. It is not possible for a defendant to argue that it is impracticable, difficult or even impossible to do it, or not to do it. For example, section 7 HSWA states:
"It shall be the duty of every employee while at work -
a. to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
b. as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with."
8. This section by the use of the word "shall" therefore imposes absolute duties on the employee. Once the prosecution has proved an employee did not take reasonable care etc the offence 1 is proved, whether or not the defendant realised that what s/he was doing was not good enough.
9. The duty set out at section 7 (a) HSWA is to take "reasonable care". There is a distinction between the duty to take reasonable care and the duty to ensure health and safety "as far as reasonably practicable".
10. Under the HSWA and the relevant regulations, a duty holder is frequently required to do what is "reasonably practicable" or "practicable" to achieve a safe system of work. In these situations, section 40 HSWA provides that once the prosecution has established a prima facie case, i.e the elements of the offence have been proven, the burden is then on the defendant to satisfy the court that it was not practicable or reasonably practicable to do more to control the risk than was in fact done. This applies only to offences consisting of a failure to comply with a duty so far as practicable or so far as reasonably practicable. It is at this stage that forseeability becomes relevant. It is not practicable to take precautions against a danger which is not known to exist, although once the danger is known, it becomes practicable to do something about it. The standard of practicability is that of current knowledge and invention.
11. "Reasonably practicable" is a lesser standard than "practicable". It implies that the duty holder must balance the level of risk against the measures needed to avert the risk, whether in money, time or trouble. If the risk is insignificant to the sacrifice, the defendant will discharge the duty, and will have done all that was reasonable 2. Where the standard is one of "practicable" the duty holder should do what is necessary to reduce the risk regardless of the cost, (in time or money).
12. It will be for the court to decide as a question of fact, based on the evidence that can be adduced, whether or not something was practicable or reasonably practicable. The Court of Appeal have ruled that proof that a certain measure was not reasonably practicable, as per section 40 HSWA, is an essential ingredient of the offence 3 and this burden falls to the defence.
13. HSE as the prosecutor will allege in relevant breaches of legislation that the defendant has not done all that is reasonably practicable to reduce the risk to health and safety. It is then for the defence to show on balance of probabilities (the "civil law standard") that they did all that was reasonably practicable
"Reverse burdens"
14. When the burden of proof is on the defendant to disprove a particular issue it is often referred to as a "reverse burden", because it reverses the normal situation when the prosecution must prove the facts beyond reasonable doubt.
15. Section 40 HSWA imposes a "reverse burden" as it provides that it is for the accused to prove that it was not practicable or reasonably practicable to do more than was in fact done. Similarly, under section 17 HSWA, the accused is required to show that s/he observed the specific statutory provision otherwise than by observing the relevant Approved Code of Practice, by adopting suitable alternative measures.
16. Where a burden of proof is on a defendant, s/he can satisfy it if s/he proves the issue on the balance of probabilities. This is the same standard as that placed on a claimant in a civil action. S/he need not prove the issue beyond reasonable doubt.
Legal and evidential burdens
17. It is important to distinguish the two types of burden of proof, the legal and the evidential.
18. The legal burden is the obligation on a party to prove a fact in issue. The prosecution would normally have the legal burden to prove the elements of the offence. Whether this burden has been discharged is decided at the end of the trial by the magistrates or the jury.
19. The evidential burden is the obligation to adduce sufficient evidence on a fact in issue to justify, as a possibility, a favourable finding on that issue by the magistrates or jury. Whether the evidential burden has been discharged is decided, during the course of the trial, by the judge.
Exceptions to the rule concerning legal/evidential burdens
20. A party bearing the legal burden on a particular issue usually bears the evidential burden of proving that issue as well.
21. Two exceptions are:
o certain criminal defences 4;and
o "presumptions".
22. In certain criminal defences the burden on the defence may be "evidential only" so that the defence merely have to raise sufficient evidence for the matter to be considered by the court. However the Court of Appeal has ruled that the burden of proof imposed on the defendant by virtue of section 40 HSWA is a legal as well as an evidential one, and as such remains compatible with the European Convention on Human Rights 5. This exception does not therefore apply to health and safety offences.
23. Presumptions are made when a court treats a fact as having been proved, notwithstanding that no evidence or insufficient evidence has been adduced to establish it. A presumption can assist the prosecution in proving a particular fact by imposing a requirement on the defence to disprove it. For example, it will be presumed as a matter of law that:
o a properly addressed and posted letter, not returned, has reached its destination;
o a person acting in an office was properly appointed.
a. facts will therefore be "presumed" by the court unless the defence bring evidence to the contrary sufficient to rebut the presumption.
Advance rebuttal
24. In cases involving practicability or reasonable practicability, it is advisable to adduce evidence of industry standards etc. during the prosecution case to show what was reasonably practicable (despite the fact that the onus of proving reasonable practicability is on the defendant). This is because the opportunity to do so may be lost once the prosecution case has closed. The court will need to assess the extent of the defendant's blameworthiness, as this may affect sentence 6. You should show that the defendant could have taken more steps than were taken. This is known as `advance rebuttal' and has been recognised by the courts as such 7.
Footnotes
1. Different offences will apply depending on the circumstances of the case.
2. Edwards v National Coal Board 1949 1KB 704
3. R v Janway Davies, CA, LTL 18.12.02, IRLR (2003) 170
4. These defences, for example self-defence, will not normally have application in health and safety cases.
5. R v Janway Davies, CA, LTL 18.12.02, IRLR (2003) 170
6. R v Howe & Son (Engineers) Limited [1999] 2 All ER 249: "...other matters that may be relevant to sentence are the degree of risk and extent of the danger created by the offence, the extent of the breach or breaches...."
7. R v Associated Octel Co Ltd HoL, WLR, 29.11.96