Guilty until proven innocent? The Health and Safety at Work Act and the reverse burden of proof

26th March 2019 Business Crime

The presumption of innocence is a legal principle that underpins the criminal justice system. The prosecution bring the case against a defendant and it is for the prosecution to prove their case. ‘Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law,’ says the European Convention of Human Rights.

So does Section 40 of the Health and Safety at Work Act go against that principle?

Section 40 states:

In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.„

To break this down:

If you are an employer who has an employee who is injured in the workplace and as a result you are charged with a criminal offence under the Health and Safety at Work Act, you would be expected to prove to a criminal court that you did everything that was reasonably practicable to prevent that accident from happening.

Prosecutions of Health and Safety matters are criminal offences, heard in criminal courts yet the Act creates a huge departure from the norm in most criminal cases.

The lawfulness of Section 40 has been challenged but the Courts have determined that the reverse burden is justified, necessary and proportionate. If the HSE can show that exposure to a risk existed then the burden of proof shifts to the defence and it is for you to prove you have acted in a reasonably practicable manner to manage the risk.

If you require advice in relation to health and safety matters please contact a member of our Business Crime and Regulatory Team.

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Sahar Handford is a Senior Associate located in Manchester in our Business Crime & Regulation department

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