Section 40 HASAWA

Innocent until proven guilty? Or Section 40 HASAWA?

One point that I cover on certain Health and Safety Training courses is Section 40 of the Health and Safety at Work etc Act 1974 (Section 40 HASAWA). We are generally of the opinion that we are innocent until proven guilty. In the case of Health and Safety, this is not always the case. It is often the case that we need to (be able to) prove our innocence!

Section 40 HASAWA: Onus of proving limits of what is practicable, etc.

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 were no better practicable means than was in fact used to satisfy the duty or requirement.

What does this mean?

In real terms it means that it is not for the prosecution to prove guilt, but for the defence to show that they are not guilty. Ouch! How are you set up to demonstrate that you have reduced the risks “to as low a level as is reasonably practicable”?

If an accused wishes to rely on the provision, they must prove the defence on the balance of probabilities. The provision is called a “reverse onus” or “reverse burden of proof”. Normally the burden of proof is on the prosecution to establish facts beyond reasonable doubt.