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Posted By Eric Burt
Does anyone have a plain English version of the judgement in this case.
This case went to the Court of Appeal who ruled that the legal burden of proof in s40 HASAWA is placed upon the defendant and the infringement upon the presumption of innocence was justified.
If I read this correctly, it is now saying that for Health and Safety cases taken under HASAWA, it is for the defence to prove that they acted so far as is reasonably practicable, rather then for the prosecution to show that they didn't.
It seems to drive a coach and horses through the time-honoured principle of "innocent until proven guilty" or am I missing something here?
Any thoughts appreciated....
Cheers,
Eric
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Posted By Robert Whent
Eric,
the HSWA was written that way. The rules have always been the 'wrong way round' for offences under HSWA.
I received something on this today.....
A Court of Appeal decision in the case of Davies -v-
Health and Safety Executive [December 2002]
(currently unreported), has settled the conflicting
decisions at Crown Court level. This follows on from
our earlier Law-Now bulletin regarding the
compatibility of section 40 with Article 6(2) of the
European Convention of Human Rights.
The Court of Appeal concluded that section 40 is
compatible with Article 6(2) and that not only is the
legal burden of proof on defendants justifiable but
that it also necessary and proportionate.
A fuller commentary on the decision in the Davies
case is available at
www.law-now.com/CS2000/i...ealthandsafetyatwork.htm
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Posted By Paul Craythorne
Eric,
Guilty until proven innocent has always been the way with H&S prosecutions.
Paul
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Posted By Eric Burt
Cheers Robert.
Unfortunately the link didn't work as you have to log in as a user, so will have another go at it tomorrow........ unless you can let me have your log-in and password!
Thanks,
Eric
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Posted By John Allen
It is unfortunate that Safety Practitioners do not understand S40 of the HSW Act and that many take it to mean a reversal of the presumption of innocence principal of law or that an accused is "guilty until proven innocent".
S40 places a duty on the accused where there is duty to do something so far as is reasonably practicable to prove that it was not in fact reasonably practicable to do that thing. For this section to take effect complaint against the acused must aver a breach of a statutory duty with a "reasonably practicable" requirement. Secondly it is only in this part of the averment to which the section applies. To prove a complaint the prosecutor must prove all parts of the case beyond reasonable doubt. This includes date and time of offence, injury or danger to person, existence of employment or other category of person to whom the act extends protection and so on.
The accused need say nothing in his defence if the prosecutor fails to make a case. The only exception is that part of the complaint referring to doing what is reasonably practicable. This places the burden on the accused. However even if the accused fails to prove that what he did was reasonably practicable the case against him could still fail if the other parts of the complaint were not proven beyond reasonable doubt.
S40 of the HSW Act is, like other sections, based on established case law. It therefore created no novel precedent when it was introduced. It certainly did not move HSW law into an area of presumption of guilt, if it had it would have been challenged succesfully long before now.
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Posted By Geoff Burt
I have precised the following:
'Whilst the general rule is for the prosecution to prove its case (beyond reasonable doubt) there are some circumstances where the proof is on the defendant.
Two examples are section 17 of HSWA which requires the accused to show that he/she observed the statutory provision otherwise than by observing the ACoP and;
Section 40, the one being discussed, requires the accused to show that it was not practicable or not reasonably practicable to do more than was done.'
So, far from misunderstanding the position, a number of the contributors have got it right. Under these two sections there is an assumption of guilt to which innocence has to be proved.
Source: Norman Selwyn JP, LLM, Dip Econ (Oxon), ACIS, Barrister, Lecturer in Law at the University fo Aston (or was in 1990).
I received my Law training from Norman when starting out in H&S and this always stuck in my mind as being an anomaly, but it is the way it is and something I always stress to managers.
Geoff
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Posted By Geoff Burt
I should have referenced the book.
Selwyn's Law of Health and Safety at Work, Butterworth, ISBN 0 406 66750 0
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Posted By John Allen
I’m not sure if there really is a disagreement. S40 places the onus of proof on the accused for that part of the complaint (or charge) relating to proving what is reasonably practicable. In all other respects it is for the prosecutor to prove his case beyond reasonable doubt. There is quite clearly no general reversal of the presumption of innocence under HSW Statutes although I have lost count of the number of times I have heard this stated.
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Posted By Geoff Burt
Yes I take your point - there isn't a 'general' reversal in all H&S legislation - it is just those two sections of the HSWA.
I didn't think it was any other way but I can see where you are coming from now.
To answer Eric's question, yes the burden is on the defendant.
Geoff
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