Health and Safety - Guilty Until Proven Inocent?

Risk manager John Neil, from business insurance specialists Alan Boswell Group, takes a look at the 2010 IOSH (Institute of Occupational Safety and Health) conference and the debate to reverse the Burden of Proof principle.

At this year's IOSH conference a panel of high profile lawyers suggested that one of the next major developments in health and safety law could be further consideration of the ‘reverse burden of proof’ principle (i.e. guilty until proven innocent).

Delegates were told 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 Health and Safety at Work Act (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 proven that an exposure to risk existed, section 40 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.

It is a firm belief in some legal circles that the fact imprisonment is now possible for more offences means it is fairly certain 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.

In David Janway Davies v HSE, in 2003, the defence challenged the lawfulness of section 40 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 section 40 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

As prison is now a more likely scenario a new human rights dimension could be argued and the general feel was that this will again be referred to court and a new decision will need to be made.

Other speakers however were less hopeful stating 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.

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