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
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 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 â€" the benefit of the doubt â€" 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?â€.
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 â€" 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 â€" to make the right decision with the benefit of hindsight â€" 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 â€" “Did the defendant fail to avoid exposure to risk?†â€" is only half the story.
So, is it possible to defend an HSE prosecution? Yes â€" possible but very, very difficult. The only answer is to do all you can to avoid an HSE investigation â€" invest, train, assess and manage risk â€" 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
