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Davies v Health and Safety Executive, Court of Appeal

2 January 2003
The issues

Health and Safety at Work Act 1974 – duty not to expose public to risks to health or safety – statutory defence – burden of proof.

The facts

David Davies was convicted of an offence under Sections 3(1) and 33(1) (a)/1974 Health and Safety at Work Act when he was fined £15,000.00 and Ordered to pay £22,544.32 prosecution costs. In Section 3(1) states “it shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practical, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”.

The statutory Defence appears in Section 40 and provides that in any offence consisting of a failure to comply with a duty it should be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty. The Trial Judge found that the Section 40 Defence amounted to a legal burden of proof. The Defendant appealed on the basis that Section 40 could only be found compatible with the Convention for the Protection of Human Rights and Fundamental Freedoms if it was read, so as to impose merely an evidential burden.

The decision

1. The burden was a legal burden of proof, and not merely an evidential one.

2. There was therefore an inroad made upon the presumption of innocence, which it was for the state to justify as necessary justified and proportionate.

3. A balance had to be struck between the fundamental rights of the individual and the general interest of the community. The issues were (following R -v- Director of Public Prosecutions, ex parte Kebilene):-

(a) What did the prosecution have to prove in order to transfer the onus to the Defence.

(b) What was the burden upon the accused – was it something that it was likely for him to find difficult to prove or did it relate to something likely to be within his own knowledge or to which he had ready access?

(c) What was the nature of the threat faced by society, which the provision was designed to deal with?

Considering these matters led to the view that the infringement was justified. Other matters would also be taken into account such as the regulatory nature of the offence and the absence of imprisonment as a sanction.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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