One of the next major developments in health and safety law could be further consideration of the ‘reverse burden of proof’ principle, a panel of high-profile lawyers suggested yesterday (25 March) at the IOSH Conference.
Speaking at the event’s ‘In Court: Live’ Q&A session, Steffan Groch, partner at law firm DWF, told delegates that the Health & Safety (Offences) Act has created a “criminal feel” by making imprisonment an option for a wider range of health and safety offences in the lower and higher courts.
Under the Act, if an individual as an employer is convicted of breaching sections 2 or 3 of the HSWA for failing to ensure the health and safety of employees or non-employees, they could face a custodial sentence of up to two years.
In such cases, once the prosecution has shown that an exposure to risk existed, s40 of the HSWA kicks in and the burden of proof falls on the defendant to prove that they acted in a reasonably-practicable manner to manage the risk.
In the case of David Janway Davies v HSE, in 2003, the defence challenged the lawfulness of s40 on human-rights grounds, arguing that it was not in line with the principle of ‘innocent until proven guilty’. The Court of Appeal rejected the argument and upheld that s40 was indeed proportionate, citing, as one of the main reasons for its decision, the fact that the offence did not carry a potential prison sentence.
According to Groch, the fact that imprisonment is now possible for more offences means it is a “pretty fair shout” that a future decision, in which an individual is found guilty, will be challenged on the grounds that the ‘reverse burden of proof’ principle is disproportionate.
Kevin Bridges, partner at Pinsent Masons, concurred: “There is a human-rights dimension to this and I think it will come back before the courts, and a decision will need to be made.”
However, Gerard Forlin QC, a member of 2-3 Gray’s Inn Square, was less convinced that the new Supreme Court would want to revisit the issue. Although he said he hoped he is wrong, he reminded delegates that the ‘reverse burden of proof’ principle is also applied to other regulatory areas, such as proving to the Police that you hold a driving licence.
Concern about individuals being prosecuted was also raised by another delegate, who asked the panel specifically whether health and safety advisors would come under the microscope for offences in the future.
Bridges said this would absolutely be the case. He remarked: “If you’re a consultant and you’re advising a client of yours, and you’re not competent in that area or field, and the organisation is in breach of its duty after acting on your advice, then you could be prosecuted under section 36 of the HSWA.”
Forlin pointed out that the prosecution could engineer a ‘cut-throat’ defence by getting both the employer and their consultant in the dock, arguing over who was to blame – a situation he described as a “delicious and beautiful moment” for prosecutors.
Jon Cooper, a partner at Bond Pearce, commented: “I think one of the ironies of the Corporate Manslaughter Act is that more individuals will be prosecuted,” as there is a much keener focus on their actions “at all levels of an organisation – from an employee with duties under section 7 of the HSWA, right through [to board level]”.
Moving on to other issues, head of policy and public affairs at the British Safety Council, Neal Stone, asked the panel whether the ICL inquiry’s recommendation for independent external verification of risk assessments – which the Government has decided against taking forward – chimed with Lord Young’s comments at the opening address on raising standards of consultants and with the Conservatives’ plans for self-regulation by firms who pass independent audits.
In response to his question on whether there is a concern in the courts about the quality of risk assessments in general, Kevin Bridges said: “I think there is a problem with risk assessments. Many of those I come across when defending clients are of a poor quality. They are treated, very often, as tick-box exercises. Very little thought goes into what is the real purpose and objective of the risk assessment, and there is a real underlying problem that risk assessments are not achieving those stated aims.”
However, in terms of whether they felt that some form of independent verification of risk assessments was necessary, the panel was largely unanimous in the view that the Government had been right to reject the proposal.
Steffan Groch worried that the independent-verification approach could be perceived as outsourcing, which could be dangerous. Added Gerard Forlin: “The problem with independent verification is that it allows people to say ‘somebody else is there to catch the ball’. It also doesn’t deal with dynamic risk assessment, as people are left not knowing what to do.”
He went on to attack the HSE over how some of its inspectors seem to think that organisations should be risk-assessing everything, despite the sensible and proportionate message to managing risk that the Executive outwardly promotes.
There was, however, some disagreement on the panel about whether either the HSE or local authorities have a more realistic expectation of risk assessments. Groch argued that the HSE takes a more draconian, and sometimes unrealistic view, while local authorities are generally more in touch with reality.
Counter to this, Jon Cooper commented: “The fundamental problem with local authorities is the lack of consistency. Health and safety rests with environmental health departments that have other functions, such as food safety, and they don’t have the expertise. Their approach to risk assessment is more stringent than the HSE.”
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