To defend an HSE prosecution is possible but very difficult. Stephen Barnfield explains
what companies in this situation can expect to face in the courtroom
For many businesses, the shock of a first safety
prosecution isTo defend an HSE prosecution is possible but very difficult. Stephen Barnfield explains
what companies in this situation can expect to face in the courtroom
For many businesses, the shock of a first safety
prosecution is hard to overcome. "Not us," they say.
"We're a good company, we do things by the book, we
care about our employees." The reality, when it sinks in, is hard
to stomach. Put yourself in their shoes: Facing HSE
prosecution? If so, you are a second-class citizen.
As you sit on a hard bench in a court waiting room, waiting for
your turn, next to suspected burglars and embezzlers, remember
this: they will get the premium service, the right to rely upon
ancient legal rights but you, honest, hard working employer, will
not. The most obvious legal right - the benefit of the doubt - is a
stark example.
Should a policeman come upon you, say, in a dark alley,
bloody knife in hand with a recently deceased victim at your feet,
you still retain that basic right. To convict, the prosecution must
prove the case beyond reasonable doubt. The evidence might be
overwhelming but you still have the right to put the case before a
jury, to raise a doubt and ask: "Are you sure it could not have
been an accident?".
Sometimes in those circumstances, the jury will not be sure.
Surprise acquittals feature in the newspapers every week.
Surprise safety acquittals are far less common. Where HSE
prosecutions are concerned, bad things really do come in threes.
Firstly, for the 'headline' offences, all the prosecution need
prove is 'risk'. Often, if there's been an accident, that job is pretty
much done - there must have been a risk because the accident
happened. After that, it's down to you to show you took 'all
reasonably practicable steps'. However, whilst it is often very easy
to see simple steps that might have averted an accident after the
event - to make the right decision with the benefit of hindsight -
it can be far, far harder to account for every possible eventuality
in advance.
The courts do give some attention to foreseeability: it can be
argued that if a risk was not foreseeable or if it was 'fanciful' it
would not have been reasonably practicable to guard against it.
Even this, though, is viewed through the magic goggles of
hindsight. To ask "should you have foreseen, say, the wall
collapsing?" where the wall has collapsed (often described
graphically and upsettingly with the victim sitting in court) is a
very different thing from asking "is the wall likely to collapse?" in
the abstract before anything has gone awry.
The second difficulty is that you are trying to prove a negative.
It helps to show the positives but it does not prove that you could
not and should not have done more. The list of things you could
have done is never ending.
Finally, there is the scope of the prosecution: the narrow issue
of an accident is just the start. In many cases, whilst the only
reason an HSE inspector has been poring over your risk
assessments and method statements in agonising detail is because
there has been a serious incident, that does not stop the inspector
picking out each and every unrelated failing he can find in your
procedures. Why? Because sometimes, any breach will do.
The target of the prosecution might be that a particular breach
has caused an accident but each, every and any breach will be
caught in the sight of the HSE prosecution shotgun. There's no
need to prove causation. After the judgement in the 'R -v-
Tangerine' case, the prosecution can put the facts of an accident
before the jury as nothing more than an example of what could
go wrong. A catalogue of minor breaches takes on a whole new
significance against the backdrop of a serious accident. The strict
legal question - "Did the defendant fail to avoid exposure to
risk?" - is only half the story.
So, is it possible to defend an HSE prosecution? Yes - possible
but very, very difficult. The only answer is to do all you can to
avoid an HSE investigation - invest, train, assess and manage risk
- but be ready to act quickly and seek early advice if it comes to
it. Early advice gives you the best chance. Anything less is no
chance at all.
Stephen Barnfield is a solicitor, regulatory services group, at
Hill Dickinson law firm
