Hi Peter...I think it does reflect an over confidence in this case...I have others involving multiple fatalities were they should have been more confident.

The HSE Agruments - what I can guess was dicsussed (I have a funnier version)

1. Provision of Equipment and Duty of Care: The defendants provided the quad bike, arguably engaging their duty of care. In Edwards v NCB [1949] 1 All ER 743, employers were held liable for failing to take reasonable steps to prevent foreseeable harm, even when employees had some familiarity with their tasks. The HSE could reasonably argue that supplying machinery imposes an affirmative duty to ensure safe use, including assessing training needs.
2. Reverse Burden under Section 40 HSWA: HSE might rely on the partial reverse burden to contend that the couple had to demonstrate what training or supervision would have been reasonably practicable. This legislative mechanism places emphasis on the defendant to justify compliance, shifting evidential weight and ostensibly easing prosecutorial hurdles.
3. Public Interest Considerations: Fatal incidents involving supplied equipment raise societal concerns about accountability. The HSE may pursue prosecution to reinforce standards of diligence, deter negligence, and signal that even small-scale agricultural undertakings are subject to robust health and safety oversight.

Arguments Against Prosecution

1. Competence of the Worker: Evidence indicated that the gardener was skilled in quad bike operation. In such circumstances, the proportionality principle under HSWA becomes decisive. The Court of Appeal in Marshall v Gotham Co Ltd [1954] 2 QB 402 established that an employer’s duty does not extend to measures that are disproportionate relative to the risk. A robust defence could convincingly argue that formal training for an experienced operator was unnecessary, particularly when the risk of misuse was low.
2. Evidential Threshold – Beyond Reasonable Doubt: Criminal liability requires proof beyond reasonable doubt. The prosecution must demonstrate that failure to provide additional measures directly caused the fatality. In practice, HSE prosecutions of deaths involving competent self-employed individuals face high evidential barriers. R v Associated Octel Co Ltd [1996] 3 All ER 846 reinforces that liability must account for the likelihood and severity of harm relative to practicable mitigation.
3. Proportionality and “Reasonably Practicable” Measures: The House of Lords in R v Associated Octel emphasised proportionality, noting that health and safety obligations are not absolute. For elderly defendants supplying common rural machinery to a capable operator, requiring extensive training could be seen as disproportionate. This aligns with modern prosecutorial guidance: the HSE should not pursue marginal cases where the burden of additional measures outweighs the risk reduction.

 Modern HSE Prosecution Policy

• Conservative Assessment of Conviction Probability: HSE policy advises that prosecutions proceed only where there is a strong likelihood of success. The Monmouthshire case may reflect overconfidence in Section 40 reverse burdens without adequately accounting for the robustness of a defence grounded in proportionality and worker competence.
• Learning from Not-Guilty Verdicts: Acquittals provide critical jurisprudential lessons, demonstrating that reliance on select case law such as Edwards v NCB must be balanced against countervailing authority emphasising practical limits (Marshall v Gotham, Associated Octel).
• Risk of Overreach: HSE prosecutions may be vulnerable where they imply absolute duties, potentially leading to public perceptions of unfair enforcement and judicial pushback. A nuanced appreciation of “reasonably practicable” and evidential sufficiency is essential.

Prosecution Strengths: Edwards and Sections 3/4 HSWA provide a basis to argue that supplying equipment can engage duty.

Defence Strengths: Using Marshall, Associated Octel, and Section 40 reverse burden demonstrate proportionality, competence, and evidential limits.

Practical Outcome: Where the operator is competent and the risk is typical for rural equipment, HSE prosecutions are less likely to succeed, aligning with the Monmouthshire acquittal. 

There is a foot note to this and it is the experience and tencity or lack of when it comes to investigation and legal review in the HSE.  Some larger high profile case get very experienced inspectors and legal advisors, some do not. Not sure who said this but 'experience is simply the name we give our mistakes'

Sistine Chapel Paint - I believe the untramarine he used was sourced from Afganistan, the rest from around Italy and Spain...wasn't the Forest of Dean more akin to timber and iron production in the day?

Perhaps it only applies to the published HSE prosecution outcomes, but Peter's final comment

" the usual narrative where the defendant pleads guilty even if they are not that sure they really are."  Struck a chord. They seem to take a disproportionate amount of time to close a case that typically ends with a guilty plea, often where the case and issues are fairly basic, and I often wonder if the defendants only pleaded in exasperation.   how their cases are managed bot in terms of pursuing a case and its duration really is due for some close scrutiny, otherwise the threat of being prosecuted is only a deterrent due to its unending time it takes rather than the court outcome. 

Hi Acorns

To be fair the entirety of the wheels of justice has been grinding to a halt.

However, even before the overall Courts system started to creak with an acceleration during Covid, HSE (and the Crown Office acting on their behalf) seemed to be taking ever longer to bring a case to Court.

I've been a defence witness in one so called Newton Hearing whose purpose is to work out "HOW guilty" where the civil legal action had been completed years before the criminal prosecution reached Court.

Hi AK

You ask a question that I had considered.

The BBC coverage doesn't answer the question but if the "main activity" is farming or similar then the enforcing authority should have been HSE.

Could be that there was a farm shop which had, in effect, overtaken the farm as the "main activity" - in that case the local Council should have been the enforcing authority - in which case, still no surprise that they would rely on HSE for an expert witness.  Rather doubt that this person was as "expert" in relation to the subject matter of the case as the prosecution would present them as. 

When I joined HSE, its constituent parts included what had been HM Agricultural Inspectorate, but AgI hadn't been fully integrated into the organisation so, as example we had in our Area, eight "Industry Groups" mostly staffed by those previously employed by HM Factory Inspectorate and ONE "Industry Group" dealing with Agriculture, Fishing and Forestry. At that time ALL the staff were ex HM Agriculture Inspectorate and mostly invariably from farming etc backgrounds so perhaps less likely to challenge "custom and practice" than someone going in without the same preconceptions.

Times have changed and as I understand it HSE now treats Agriculture etc just like any other sector, so HSE Inspectors from any background can find themselves looking at what happens on farms etc. There are advantages and disadvantages in sending in someone who is ignorant of a sector and I suspect on this case the disadvantages were more to the fore.

If you try to treat a farming business with two bosses the same way as you do a huge corporation running a factory with 1000 workers, it probably won't work out well. However that applies equally to dealing with a family run engineering factory with five staff.

There were good reasons why Parliament decided that the Minister could make exceptions for small businesses!!