Posted By Lawrence Baldwin With the current furore about to erupt with regard to the embodiment in October of the UK signing up to the European Convention of Human Rights, I would be interested to hear views on where Article 6, (Right to a fair trial and all that I understand that entails, i.e. right to silence) would sit alongside Section 40 of the HASWA. (Onus on the accused to prove limits of practicality, therefore silence would be construed as guilt? and would that then be a fair trial?)

Posted By Ron Young Lawrence, I understand that my response was not quite what you were asking for but I think there is a possibility of a lot of repercussion over Article 6 and I thought it would be a good idea to expand on your original message

Posted By Allan St.John Holt Current advice to JPs is that there is no current advice! We just have to wait and see what creative poeple will come up with. The off the record expectation is that there will be an initial flurry but it should all go away quite quickly as most of the main points are already covered by existing law. I agree about the HASWA implications, but on the whole one's experience with potential floodgates is that they remain only slightly ajar rather than wide open at times like this. Allan

Posted By Adrian Watson R v Lambert and other appeals [2000] All ER (D) 1135 answers this question. This case dealt with the issue whether the statutory provisions, namely s 2 of the Homicide Act 1957 and ss 5(4) and s 28 of the Misuse of Drugs Act 1971, which provided a benefit to a defendant but required him to prove certain specified facts before that benefit could be obtained, were contrary to the 1998 Act. It was stated that the 1998 Act could potentially have a significant effect on statutory provisions which purported to depart from the general rule that the onus should be on the prosecution, because the Act made art 6 of the European Convention on Human Rights (which guaranteed the right to a fair trial) part of the domestic law. If a statutory provision became law before or after the 1998 Act it had to be read in a way which was compatible with the Convention and if that was not possible the court could make a declaration of incompatibility. In considering the position under the 1998 Act, it was necessary to consider whether the impugned sections as hitherto applied were contrary to art 6. In so doing account had to be taken of the jurisprudence of the European Court of Human Rights, and the Convention had to be interpreted broadly and purposively. Therefore a fair balance had to be struck between the demands of the general interests of the community and the protection of the fundamental rights of the individual. In this case it was held that these defences were not incompatible with art 6 and the Human Right Act. In Lockhart v Kevin Oliphant 1992 SCCR 774 the High Court of Justiciary stressed that once there is a prima facie case against the accused that he has not ensured the health, safety and welfare at work of his employees then the onus under s 40 is on the accused; see also Readmans v Leeds City Council [1993] COD 419. Thus the Crown does not have to prove that it was reasonably practicable to comply with the Act. Once the prosecution has proved the accussed committed the offence, the accused has the burden of proof under s 40 of showing that something was not practicable or not reasonably practicable as the case may be. The burden of proof laid on the defendant is less onerous than that resting on the prosecutor as regards proving the offence, and may be discharged by satisfying the court of the probability of what the defendant is called on to prove: see R v Carr-Briant [1943] 2 All ER 156, CCA and R v Dunbar [1957] 2 All ER 737, CCA.