(back to preceding text)

44.  Obviously an alleged breach of duty to take reasonable care must be specified and proved and in this context it is understandable that a Brown direction is required. Whilst section 7 concerns employees, however, sections 2 and 3 deal with employers and, not unnaturally, a firmer stance is adopted towards them (although not so firm a stance as the European Commission were contending—in Case C-127/05, referred to by Lord Hope at para 31 of his opinion—unsuccessfully in the event, was required by Council Directive 89/EEC to be taken). Sections 2 and 3, in contrast to section 7, do not impose a duty merely to take reasonable care; rather they impose a duty on employers to ensure health and safety—in the case of section 3, to conduct their undertaking so as to ensure that people are not thereby exposed to risks to their health and safety—leaving it to the employers (see section 40 of the Act) to establish if they can, on the balance of probabilities, that it was not reasonably practicable for them to do more than they did do to achieve the required objectives of health and safety. By the same token that no Brown direction is required in prosecutions under these sections, so too is it unnecessary for the prosecutor to identify, allege and prove specific failures on the employer’s part, for all the world as if these were necessary ingredients of the offence charged.

45.  I too would dismiss these appeals.

LORD NEUBERGER OF ABBOTSBURY

My Lords,