(back to preceding text)

22.   Mr Lissack then said that it was not enough for the prosecution simply to assert that a state of affairs existed. This proposition raises the issue of prosecution practice. As I have said, the statute prescribes the result that must be achieved. That is one thing. How the prosecution proposes to prove that this was so is another. The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking.

23.  Your Lordships were referred to a number of cases which show how practice varies as to the amount of detail that the prosecutor may give when the charges or counts are being formulated. The overriding test is one of fair notice. In Scotland the prosecutor is required to set out the facts and circumstances of the crime charged. These facts and circumstances must be such as to constitute a crime known to the law. Where a contravention of a statute is alleged it is necessary to specify all the facts and circumstances that constitute the offence. The narrative must be sufficiently detailed to identify the risk that the facts and circumstances gave rise to. In Lockhart v Kevin Oliphant Ltd, for example, the charge specified breaches of section 2(2)(a) and (c) as well as of the general duty in section 2(1), and it referred to the fact that the street lamp was being erected in such close proximity to an overhead power line that the deceased was electrocuted. In Adamson v Procurator Fiscal, Lanark, 31 October 2000, not reported, the appellants were charged with a contravention of section 3(1) in respect that they failed to ensure that an Ayrshire bull which they kept in a field and attacked a man who was working on the grass verge of an adjacent public highway was securely fenced. Delivering the opinion of the High Court of Justiciary, Lord Carloway said:

“What requires to be proved by the Crown is that a particular operation exposed persons to the risk of harm, in this case physical injury. It is sufficient for the proof of the existence of risk that a possibility of danger is created. Actual harm need not be proved: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. If such possibility is made out on the evidence then a conviction is bound to follow unless the defence is established. Of course the Crown is obliged, as a matter of fair notice, to specify in the charge the particular operation said to give rise to the risk. In this case, that operation was the keeping of a bull in a field, which was not secured.”

24.  Narrative charges of the kind used in Scotland are not required in England and Wales. But it is the practice for the statement of the offence to be accompanied by particulars of the offence in which the facts and circumstances are set out. Here again the test of how much detail need be given is that of fair notice. The particulars in R v British Steel Plc [1995] 1 WLR 1356 did no more than state the name and address of the undertaking and the names of the persons not in the employment of the defendant who were exposed to risks. But in that case there was no dispute about the cause of the accident: see p 1358B. It was common ground that the operation in which the men were engaged was inherently dangerous: p 1359B. In cases where the defendant is in real difficulty in framing its defence because insufficient notice has been given, it is open to the defence to ask for further particulars.

25.  In R v Board of Trustees of the Science Museum the particulars of the offence set out in the indictment specified three failures with respect to the air conditioning system at the museum whereby members of the public were exposed to risks to their health from exposure to the bacteria: a failure to institute and maintain a regime of regular cleansing and disinfection, a failure to maintain in operation an efficient chemical water treatment regime and a failure to monitor its efficiency. It would have been sufficient for the prosecution to prove the presence of bacteria in sufficient quantities in the air conditioning system to expose the public to risks to their health and safety. But where defects in the employer’s plant or systems of work giving rise to those risks have been identified the case for the prosecution may well be strengthened by the leading of that evidence. Even in cases where injury or death has resulted, investigations following the accident may not have disclosed the exact cause of it. Proof of its cause will focus attention on the particular aspect of the employer’s undertaking that gave rise to the risk. If the prosecution chooses to take this course, fair notice of its case must be given. Details must then be given in the particulars.

26.  For the reasons given by my noble and learned friend Lord Brown of Eaton-under-Heywood, I would reject Mr Lissack’s argument that allegations such as those in the prosecution’s case summary had to be specifically proved and that the jury should be directed that they could only convict if they were unanimous as to which of them had been made out: R v Brown (Kevin) (1984) 79 Cr App R 115. Fairness may, as I have said, require giving notice of such allegations. But they are not ingredients of the offence. What sections 2(1) and 3(1) prescribe is the result that is to be achieved or prevented, not any particular way or ways of achieving this. In Brown’s case the offence was fraudulently inducing the investment of money. The means by which that investment was induced was an essential ingredient. A number of matters were specified in the charge as together constituting that ingredient. As Eveleigh LJ said at p 119, it was enough that any one of them was proved, but that had to be to the satisfaction of the whole jury. In the case of sections 2(1) and 3(1) the result is what the jury must be agreed about. So long as they are agreed on that, they do not need to be agreed on all the details of the evidence.

Proportionality

27.  The question then is whether this approach to the legislation is proportionate. The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. In R v Porter (James) [2008] EWCA Crim 1271 the Court of Appeal set aside the conviction of the headmaster of a school where one of his pupils lost his footing on a step which gave access from one playground to another while he was unsupervised, with tragic consequences. It held that there was no evidence that the conduct of the school had exposed the child to a real risk: para 22. The situation was not such as to give rise to a risk of the type that section 3 identifies: para 25. That was an exceptional case, but it makes an important point. The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the word “risk” which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.

28.  Section 40 imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, para 21 Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert [2001] UKHL 37; [2002] 2 AC 545 on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility.

29.  In R v Davies (David Janway) [2003] ICR 586 the judge ruled against a submission that section 40 was not compatible with the presumption of innocence in article 6(1) unless the section was read down so as to impose only an evidential burden on the employer. His decision was upheld by the Court of Appeal. Delivering the judgment of the court, Tuckey LJ said that it had concluded that the imposition of a legal burden of proof was justified, necessary and proportionate. Regard had to be had to the fact that the Act’s purpose was both social and economic, to the fact that duty holders were persons who had chosen to engage in work or commercial activity and were in charge of it and that in choosing to operate in a regulated sphere they must be taken to have accepted the regulatory controls that went with it. In para 26 however he added these comments:

“Before any question of reverse onus arises the prosecution must prove that the defendant owes the duty (in the case of section 3 to the person affected by the conduct of his undertaking) and that the safety standard (in the case of section 3 exposure to risk to health or safety) has been breached. Proof of these matters is not a formality. There may be real issues about whether the defendant owes the relevant duty or whether in fact the safety standard has been breached, for example where the cause of an accident is unknown or debatable. But once the prosecution have proved these matters the defence has to be raised and established by the defendant. The defence itself is flexible because it does not restrict the way in which the defendant can show that he has done what is reasonably practicable.”

30.  In my opinion the Court of Appeal reached the right decision in that case, and it did so essentially for the right reasons. But I have difficulty with some of its reasoning in para 26, and with the third sentence in particular. Mr Lissack sought support here for his argument that the prosecutor must bear the overall onus of proof. But, as Mr Horlock QC for the respondent submitted, the proposition that it sets out goes too far. The prosecution must show that there was a connection between the work that the employee was doing (in section 2 cases) or the conduct of the undertaking (in section 3 cases) and the accident. But the fact that the cause of the accident was unknown or was debatable is irrelevant so far as the prosecution’s case is concerned. This is because the duty that these provisions lay down looks to the result, not the means of achieving it. Prima facie a breach of section 2(1) arises where an employee is injured while he is at work in the workplace. That fact in itself demonstrates that the employer failed to ensure his health and safety at work. The same is true where a person not in his employment but who may be affected by the undertaking suffers injury. The effect of the reverse burden must be understood against that background. Nevertheless for the other reasons that the Court of Appeal gave in R v Davies I would hold that the placing of a legal burden of proof on the employer in the case of this legislation is not disproportionate. The penalties that may be imposed on an individual have now been increased: see para 15. But I do not think that, when account is taken of the purposes that this legislation is intended to serve, this alteration in the law renders what was previously proportionate disproportionate.

31.  It was suggested that some significance might be attached to the fact that the qualification of the duty in section 2(1) by the insertion of the phrase “so far as is reasonably practicable” survived without criticism when the legislation was examined by the European Court of Justice in Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland Case C-127/05, 14 June 2007. The Commission sought a declaration that, by restricting the duty of employers in this way, the United Kingdom had failed to fulfil its obligations under article 5(1) and (4) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers. The court held that article 5(1) simply embodied the general duty of safety to which the employer is subject, without specifying any form of liability and that it was not to be read as requiring the imposition of no-fault liability. The focus of the argument was, however, on the question whether qualification of the employer’s duty was in conflict with the requirements of the article. The question whether the imposition of a legal burden on the employer was compatible with article 6(2) of the Convention was not, of course, in issue. All one can say is that the ECJ appears not to have regarded the legislation as a whole as disproportionate, bearing in mind that it was accepted that the duty in article 5(1) did not imply that the employer was required to ensure a zero-risk free working environment: para 53.

Liability of officers

32.  The prosecution of a director, manager, secretary or other similar officer under section 37 requires it first to be established that a body corporate of which he is an officer has committed an offence under one of the other provisions in that Part of the Act. Where the offence that is alleged against it is a breach of section 2(1) or section 3(1) the considerations mentioned above will, of course, all apply. So he can say in his defence that there was no breach of that provision by the body corporate or, if there was, that it was not reasonably practicable for the body corporate to avoid it. It is only when it is proved that an offence under one of those provisions has been committed that the question can arise at to whether the breach was something for which the officer too can be held criminally responsible. Then there are some additional facts and circumstances that must be established. The offence which section 37 creates is not an absolute offence. The officer commits an offence under this section only if the body corporate committed it with his consent or connivance or its commission was attributable to any neglect on his part. These are things relating to his state of mind that must be proved against him.

33.  Here too the circumstances will vary from case to case. So no fixed rule can be laid down as to what the prosecution must identify and prove in order to establish that the officer’s state of mind was such as to amount to consent, connivance or neglect. In some cases, as where the officer’s place of activity was remote from the work place or what was done there was not under his immediate direction and control, this may require the leading of quite detailed evidence of which fair notice may have to be given. In others, where the officer was in day to day contact with what was done there, very little more may be needed. In Wotherspoon v HM Advocate 1978 JC 74, 78 Lord Justice General Emslie said the section is concerned primarily to provide a penal sanction against those persons charged with functions of management who can be shown to have been responsible for the commission of the offence by a body corporate, and that the functions of the office which he holds will be a highly relevant consideration. In R v P Ltd [2008] ICR 96 Latham LJ endorsed the Lord Justice General’s observation that the question, in the end of the day, will always be whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures were in place. I would too. The fact that the penalties that may be imposed for a breach of this section have been increased does not require any alteration in this test. On the contrary, it emphasises the importance that is attached, in the public interest, to the performance of the duty that section 37 imposes on the officer.

34.  In Attorney-General’s Reference (No 1 of 1995) [1996] 1 WLR 970 the questions were directed to the effect of section 96(1) of the Banking Act 1987 which is in identical terms to section 37 of the 1974 Act. Lord Taylor of Gosforth CJ said at p 980 that where “consent” is alleged against him, a defendant has to be proved to know the material facts which constitute the offence by the body corporate and to have agreed to its conduct of the business on the basis of those facts. I agree, although I would add that consent can be established by inference as well as by proof of an express agreement. The state of mind that the words “connivance” and “neglect” contemplate is one that may also be established by inference. The offences that are created by sections 2(1) and 3(1) are directed to the result that must be achieved by the body corporate. Where it is shown that the body corporate failed to achieve or prevent the result that those sections contemplate, it will be a relatively short step for the inference to be drawn that there was connivance or neglect on his part if the circumstances under which the risk arose were under the direction or control of the officer. The more remote his area of responsibility is from those circumstances, the harder it will be to draw that inference.

Conclusion

35.   How are these various considerations to be applied to the facts of this case? Mr Lissack said that insufficient details were given in the particulars to enable the defendants to fashion their defence and the jury to identify the respects in which the first and second appellants were in breach of duty. He referred to Lord Pearson’s observation in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 131C-D, that the prosecutor who alleges a breach of section 29(1) of the Factories Act 1961 must aver with sufficient specification and prove in what respects the place of work was unsafe and that its unsafety caused the accident. In my opinion however sufficient details were given in this case, as it was stated that the risks to the employees’ health and safety at work were in relation to the driving or use of dumper trucks. It was not necessary for the prosecution to go further and specify the respects in which risks were associated with that activity or to identify the cause of the accident. The fact that there was an accident showed that the risks in this case were real, not hypothetical.

36.  No mention is made of the accident in the particulars. But no complaint was made at the trial that fair notice had not been given. It was common ground that, as the prosecutor said in his opening, the case arose out of Mr Riley’s fatal accident when he was driving the dumper truck. The state of affairs that it demonstrated was that the first appellant failed to ensure Mr Riley’s health and safety and that the second appellant failed to ensure that he was not exposed to risks to his health and safety. It was then for these defendants to prove to the lower standard that they had done all that was reasonably practicable to protect him against that risk.

37.  There was no submission at the end of the prosecution case that there was no case for the third appellant to answer. That being so, I do not think that it can be maintained that he did not have fair notice of the case that he had to meet. He denied that he had assumed any responsibility for what was taking place on the site, but he did not give evidence. The jury’s verdict shows that they accepted the case for the prosecution, which was that he was directly involved in the works and that the way they were carried on was subject to his specific instructions and control.

38.  For these reasons I consider that the Court of Appeal was right to hold that there were no grounds for setting aside the jury’s verdict in the case of any of the appellants. I would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

39.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead and, for the reasons he gives, with which I am in full agreement, I too would dismiss this appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

40.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead. I agree with all of it and there is little that I wish to add.

41.  At the appellant’s trial the jury were directed that if they were sure that the first appellant was the employer and that there was a risk to the health, safety and welfare of employees arising from the driving or use of dumper trucks at the site, they should ask themselves:

“has the defence proved that it is more likely than not that it was not reasonably practicable for [the first appellants] to do more than it did in order to ensure that employees were not exposed to a risk to the health, safety and welfare of employees arising from the driving or use of dumper trucks at this site?”

If the answer to that question was “no” they should find the first appellants guilty. (Similar directions were given in respect of the second and third appellants, naturally taking account of the section 37 dimension to the third appellant’s case.) Counsel then acting for the appellants expressly accepted that these were indeed the appropriate directions to be given. Now, however, it is said by Mr Lissack QC on their behalf that, on the contrary, these directions were fundamentally flawed and that it was necessary for the prosecution to have identified and proved one or more particular acts or omissions constituting the section 2(1) (or section 3(1)) breach of duty.

42.  In a case summary provided to the appellants before trial the prosecution had in fact outlined what they contended were a whole series of failures on the appellants’ part: amongst them, failures to train employees in the safe use of dumper trucks, to identify hazards in the use of such trucks, to plan safe routes, to instruct employees in the use of safety belts, and to carry out risk assessments. What Mr Lissack now argues is that some such allegations as these had to be specifically pleaded and proved and, moreover, that a Brown direction (in conformity with R v Brown (1984) 79 Cr App R 115) was also required: in short the jury should have been directed that they could only convict if they were unanimous as to which (if any) of the various specific allegations were made out to the criminal standard of proof.

43.  Just such a direction was held to have been required in R v Beckingham [2006] EWCA Crim 773 where the Court of Appeal, Criminal Division, for want of a satisfactory Brown direction, allowed Ms Beckingham’s appeal against her conviction under section 7 of the 1974 Act in relation to an outbreak of legionnaires disease traced to the cooling towers of an air-conditioning system for which she, the building owners’ employed architect, had been responsible. The prosecution had served on Ms Beckingham ten particulars of alleged breaches of duty by way of specified acts or omissions. Rose LJ, giving the Court’s judgment, said at para 20 that

“having regard to the way in which this case was presented by the prosecution, it was incumbent on the judge specifically to direct the jury that they must unanimously be sure that one or more of the particulars relied on as supporting the offence was made out and that this gave rise to a breach of duty under section 7.”

Critical to that decision, however, are the terms of section 7 of the Act, strikingly different from those of sections 2 and 3. Section 7 provides:

“It shall be the duty of every employee while at work (a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work . . .”