The court considered whether the reverse burden of proof in a statute creating offences is compatible with the presumption of innocence enshrined in Article 6(2) of the ECHR. The judge had ruled against a submission that section 40 was not compatible with the presumption of innocence in article 6(1) unless the section was read down so as to impose only an evidential burden on the employer.
Held: The appeal failed. The imposition of a legal burden of proof was justified, necessary and proportionate. Regard had to be had to the fact that the Act’s purpose was both social and economic, to the fact that duty holders were persons who had chosen to engage in work or commercial activity and were in charge of it and that in choosing to operate in a regulated sphere they must be taken to have accepted the regulatory controls that went with it. However: ‘Before any question of reverse onus arises the prosecution must prove that the defendant owes the duty (in the case of section 3 to the person affected by the conduct of his undertaking) and that the safety standard (in the case of section 3 exposure to risk to health or safety) has been breached. Proof of these matters is not a formality. There may be real issues about whether the defendant owes the relevant duty or whether in fact the safety standard has been breached, for example where the cause of an accident is unknown or debatable. But once the prosecution have proved these matters the defence has to be raised and established by the defendant. The defence itself is flexible because it does not restrict the way in which the defendant can show that he has done what is reasonably practicable.’
Judges:
Tuckey LJ, Douglas Brown J, Gordon J
Citations:
[2002] EWCA Crim 2949, [2003] ICR 586, [2003] IRLR 170
Links:
Statutes:
Health and Safety at Work Act 1974 40, European Convention on Human Rights 6(2)
Cited by:
Cited – Chargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
Lists of cited by and citing cases may be incomplete.
Crime, Health and Safety, Human Rights
Updated: 17 July 2022; Ref: scu.270004
