Posted By martinw You are innocent until proven guilty. The prosecution must prove your guilt.This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462: “ Throughout the web of the English criminal law one golden thread is always to be seen—that it is the duty of the prosecution to prove the prisoner's guilt." This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions: The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course. Nevertheless, this assertion is iterated verbatim in Article 48 of the Charter of Fundamental Rights of the European Union. Why then in H&S law has it got to the situation where you are effectively guilty until proven innocent? How is this right?Should we not redraft the legislation to bring H&S criminal investigations in line with the modern concept of innocent until proven guilty? Martin

Posted By martinw I could't find any when I looked, but thought that it must have been addressed. Still interested on other views though?

Posted By Barry Bruce Martin, I think we have enough trouble trying to effectively prosecute individuals and organisations for failures without further reducing the effectiveness of H & S Law through implementing the 'Golden thread' and making changes to the burden of proof. This view that section 40 of HASAWA '74 is incompatible with the basic principles of law, and also the Human Rights Act 1998, was appealed in R. v Davies (David Janway) 2002. The appeal was dismissed on the grounds that the section 40 was 'motivated by the need to protect public safety and its regulatory nature meant that those operating within it had to conform to certain standards'. I agree with this decision whole-heartedly. In my opinion, if we were to change the burden of proof it would make it far more difficult to gain successful prosecutions of individuals and organisations for their failures to protect employees and others. Regards

Posted By Barry Bruce Martin, Yes, currently it is still difficult. Do you think that changing the burden of proof would make it easier?! The introducion of the Corporate Manslaughter and Homocide Act 2007 and the Health and Safety Offences Act 2008 were introduced to close gaps in the legal system - in essence, to improve the chances of gaining successful and meaningful prosecutions. If we were to change the burden of proof we would be jumping backwards rather the moving forwards - which, I think (hope) you will agree, is the direction most health and safety professionals would want to be heading. Let me put it this way - large organisations with powerful legal teams would find it far easier to defend prosecutions if the burden of proof were to be changed. Which side of the fence are you sitting on - Prosecution or defendant??

Posted By Barry Bruce LOL - yes, its always nice to remind management about s.40............

Posted By Barry Bruce Decimol, This might help Judith Hackitt commented on the introduction of the Act, saying: " This (Health and Safety Offences) Act gives lower courts the power to impose higher fines for some health and safety offences. It is right that there should be a real deterrent to those businesses and individuals that do not take their health and safety responsibilities seriously. Everyone has the right to work in an environment where risks to their health and safety are properly managed, and employers have a duty in law to deliver this. "Our message to the many employers who do manage health and safety well is that they have nothing to fear from this change in law. There are no new duties on employers or businesses, and HSE is not changing its approach to how it enforces health and safety law. We will retain the important safeguards that ensure that our inspectors use their powers sensibly and proportionately. We will continue to target those who knowingly cut corners, put lives at risk and who gain commercial advantage over competitors by failing to comply with the law". Following its successful Third Reading in the House of Lords on 10 October, the Health and Safety (Offences) Act 2008 received Royal Assent on 16 October and comes into force on 16 January 2009. The Act fulfils a longstanding Government and HSE commitment to provide the courts with greater sentencing powers for health and safety crimes. The effect of the Act is to: raise the maximum fine which may be imposed in the lower courts to £20,000 for most health and safety offences; make imprisonment an option for more health and safety offences in both the lower and higher courts; make certain offences, which are currently triable only in the lower courts, triable in either the lower or higher courts. With regards CM and CH Act - it is fairly obvious, well to me anyway, that there needed to be changes to close the gaps in the previous judicial system, specifically s.40, to ensure companies and individuals, where appropriate, are successfully prosecuted for their failures which result in the death of a person(s). This will be tested imminently as the CPS advise on the first application of the CM and CH Act. Hope this clarifies things a little.

Posted By martinw Barry I do want things to go forward, of course I do. But when someone is on trial for murder in their own time, they are presumed innocent. If they are at work and accused, they are presumed guilty. It is not the burden of proof which needs changing(although from a number of perspectives it is a bizarre anomaly in the modern legal world). That is not going to happen. But as our laws are being strengthened as you say above we should not fear trying to prove guilt. Bear in mind that some others who are accused of crimes not committed at work have extensive personal means with which they can defend themselves. No-one says that they should be presumed guilty yet their actions may amount to deliberate murder as opposed to not having a safe system of work. I understand the system. I know why the situation is where it is. But no-one should ever be presumed guilty. That is the law admitting that it is not strong enough to do its job and in response, changing the goalposts.

Posted By Martin Mulholland In the past the burden of proof was with the prosecutors - If an injury was sustained then there was an obvious failure in Health and Safety Management. Or this may have also been if it was obvious that there had been a breach (eg: no SSoW for work at height). Now - where an alleged risk has not resulted in injury then it may be necessary to prove a breach of duty – this may require more evidence to be submitted - resulting in the burden of proof lying with the Employer. It is likely that situations will vary case to case but it may allow easier prosecutions of Companies who in the past have broken laws, but with good legal advice have managed to escape prosecution. It does set precendents - but as ever it will be the first "test" that will pave the way.

Posted By Barry Bruce I would argue the HSOA did close gaps in the legal system. It gave greaters powers and introduced tougher penalities, which by there very nature, close 'gaps' in the legal system 1. more appropriate penalities and 2. allowing imprisonment as an option for both lower and higher courts. Or maybe I misunderstand the reasons behind introducing new legislation?

Posted By Phil Rose I also don't see how the HSOA fills any significant gaps as such and certainly I don't believe that it improves the chances of a successful prosecution, nor was it intended to. I thought the intention was to give the lower courts greater sentencing powers and options. To return to Martin's original point about being innocent until found guilty. A fundamental rule in English criminal law, is that the prosecution bears the legal burden of proving all the elements of the offence necessary to establish guilt. Likewise Article 6 of the Convention grants individuals the right to a fair trial, and that everyone charged with a criminal offence shall be presumed innocent until proven guilty. Any reverse burden is at first sight open to challenge on the basis of incompatibility with Article 6. However, both English courts and the European Court of Human Rights have established that a reverse burden may be used if this is justifiable on the facts of the case and that it does not prevent a fair trial. Reverse burdens are not limited to HASAWA under S40 and can arise during the course of any trial when a defendant may submit evidence that the prosecution has then to disprove

Posted By martinw Can't argue with the above two posts: bit out of my depth, to be honest. But reverting to my original line, in the Chargot case, the fact that someone was found dead was taken as evidence that the health and safety management system had failed: that this was a de facto breach. No it wasn't - it was evidence that someone had died. If Chargot was a non-work related case there would may have been no evidence of foul play - there was none that I am aware of - and therefore the prosecution would not have had a good chance of making a case. It would never have got to court. Because this was work related, the presumption was stated that a failure must have occurred: there was a corpse, after all. And because there was a corpse, there must have been a failure. Tautological cobblers. Finding a corpse is not evidence of murder. It is evidence of someone having died. It is the investigation which follows that decides whether foul play was involved - unless you are at work. It should be evidence which decides guilt. That means evidence of foul play, not just finding someone dead.

Posted By martinw Ray - as usual you are clear and succinct. You have hit the nail on the head: mens rea. Guilt is a legal state as in you are either found guilty or not guilty. But it is also a state of mind: you either intended to do something or you did not. I don't have a problem with strict liability - after all if I am doing 50 in a 30 mph zone it is my fault. I get it. But the presumption that you are automatically in breach due to a fatality on your site is difficult. Then, it is automatically a rearguard action in listing those things which you had put in place to avoid a fatality - when it has already decided that you cannot possibly have done enough as a fatality occurred. It is that presumption of automatic guilt which I find distasteful. If an investigation started without the presumption that a death on your site was automatic evidence of a breach, there is nothing to say that such an investigation would be less professional or thorough. Proving your innocence. You cannot do that. You can only give a list of things which you have done which hopefully others will consider as evidence of diligence. The same treatment of those accused of causing another's death should be automatic - presumption of innocence. As a scenario - the prosecution in one court is trying to prove you are not innocent. In the next court, you are trying to prove to the prosecution that you are innocent. Same indictment: one was at work. I know that people at work need to be protected but I think that it is a step too far to remove mens rea from the equation. After all, isn't that the point? Otherwise is not the inquest finding of accidental death moot?

Posted By Raymond Rapp Bob Not wishing to undermine your obvious knowledge in this area I was trying to 'cut to the chase'. Some people do not have the time or inclination to delve into case law precedents and jurisprudence. Common law offences such as gross negligent manslaughter are all the more complex. A mens rea is still not required, unlike unlawful act manslaughter, but a specific duty of care must be proved. This is because unlike the aforementioned offence, a defendant can be found guilty for an act or omission. Where it is an omission, a duty of care must be owed to the deceased. Hence its inclusion in the CMA. Some might argue that gross negligent manslaughter is a 'strict liability' offence. However, the purists of jurisprudence will argue it is not. I rest my case. Have a good weekend. Ray

Posted By martinw absolutely. And now the decision has been taken to allow a major court case to go ahead without a jury(and I know the reasons for that): even better!

Posted By TonyB All, Just a of point of clarification. The above conversion is about the Onus of Proof, not the the burden of prove. Section 40 reverses the Onus of proof, therefore guilty unless you can prove otherwise. However, there is a change in the burden of proof. Although the prosecution has to prove its matters 'beyond a reasonably doubt', the defendant only has to defend itself 'on the balance of probabilities'; a much lower burden. One of the reasons why S40 has been upheld as far up as the EU Courts was because it was dealing with money (and not individual liberties). Therefore employers should be able to justify their actions and in-actions as these are undertaken for a financial benefit and the consequences are financial. At the time very few H&S offences carried the possibility of imprisonment and none those were qualified by SFARP or SFAP so S40 didn't apply. However, with the new penalties this has changed. Therefore the basis of the EU decision has now changed and it may be appealed again. Also, H&S offences are not the only offences in criminal law that use this reverse Onus of Proof. TonyB