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JL  
#1 Posted : 18 September 2024 10:52:12(UTC)
Rank: Forum user
JL

Our HSWA, section 40, states that we have the reverse burden of proof when it comes to H&S breaches, do they have a similar or equivalent reverse burden in the US, just wondering if they have a different take on criminal health and safety breaches.

Kate  
#2 Posted : 18 September 2024 11:05:07(UTC)
Rank: Super forum user
Kate

It's a completely different system, as they just have prescriptive codes of standards to operate to.  It is much more rules-based unlike the goal-setting philosophy of the Health and Safety at Work Act. I haven't seen the US criminal law in operation but it surely wouldn't involve having to prove you had done what was reasonably practicable, as that isn't a concept they are interested in.

thanks 2 users thanked Kate for this useful post.
peter gotch on 18/09/2024(UTC), toe on 18/09/2024(UTC)
toe  
#3 Posted : 18 September 2024 16:33:23(UTC)
Rank: Super forum user
toe

In the UK, you are generally innocent until proven guilty, or there is a presumption of innocence. One of our fundamental rights is the right to remain silent, which ensures we cannot self-incriminate ourselves (or our spouse). This right, I believe, is also enshrined in the American Constitution's Fifth Amendment.

The ‘concept’ of the reverse burden of proof regarding section 40, HSAWA 1974, I say concept because the Act states {it’s the accused to prove…} for example, by the nature of an accident happening could be evidence of guilt or a failure of the duty to satisfy the requirement, because the Act and subsequent regulations are designed to minimise accidents. Therefore, the accused bears the significant burden of proving the practicalities or reasonableness of the measure taken to have tried to prevent the accident or comply with the statute. In essence, you cannot remain silent, and the burden of proof is on the accused to prove…

I am not aware of America having a reverse burden, but they do have an ‘irrebuttable presumption doctrine’, which, although it is not a reverse burden, is the closest thing they may have.

stevedm  
#4 Posted : 02 October 2024 10:24:04(UTC)
Rank: Super forum user
stevedm

Originally Posted by: toe Go to Quoted Post

In the UK, you are generally innocent until proven guilty, or there is a presumption of innocence. One of our fundamental rights is the right to remain silent, which ensures we cannot self-incriminate ourselves (or our spouse). This right, I believe, is also enshrined in the American Constitution's Fifth Amendment.

The ‘concept’ of the reverse burden of proof regarding section 40, HSAWA 1974, I say concept because the Act states {it’s the accused to prove…} for example, by the nature of an accident happening could be evidence of guilt or a failure of the duty to satisfy the requirement, because the Act and subsequent regulations are designed to minimise accidents. Therefore, the accused bears the significant burden of proving the practicalities or reasonableness of the measure taken to have tried to prevent the accident or comply with the statute. In essence, you cannot remain silent, and the burden of proof is on the accused to prove…

I am not aware of America having a reverse burden, but they do have an ‘irrebuttable presumption doctrine’, which, although it is not a reverse burden, is the closest thing they may have.

na not really a concept...While the reverse burden of proof in UK HSE legislation might initially appear to conflict with the principle of innocent until proven guilty, it has been accepted by UK courts as a proportionate and justifiable departure in light of the public safety considerations involved. The principle remains intact in the sense that the prosecution must first establish a prima facie case of a breach, after which the burden shifts to the defendant to demonstrate that they did everything reasonably practicable to avoid the breach.

Thus, the reverse burden in health and safety law is narrow in scope and limited to regulatory offences, where the defendant is best placed to prove their compliance. This shift is generally viewed as being consistent with the right to a fair trial, particularly given the vital importance of health and safety regulation in protecting lives.

thanks 1 user thanked stevedm for this useful post.
MikeKelly on 02/10/2024(UTC)
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