Reverse Burden of Proof

There is still some debate whether or not there is a reverse burden of proof involved with prosecutions under section 37.

Section 40 of the Health and Safety at Work Act states:

"In any proceedings for an offence under any relevant statutory provisions consisting of a failure to comply with a duty or requirment to do something so far as is practicable or so far as is reasonably practicable, or to use the best 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 doen to satisfy the duty or requirment, or that there was no better practicable means that was in fact used to satisfy the duty or requirement."

It is clear that this reverse burden of proof applies to breaches of section 2-7 of the Health and Safety at Work Act 1974.

However, it is not clear whether it applies to section 37.

In the pre-trial hearing involving the Hatfield train crash prosecution, this was an area of argument.

The prosecuting counsel argued that in effect, there was no seperate section 37 offence. He argued that the consequences of proving a case against a section 37 defendent is that he is convicted, like the company, under section 2 or 3 of the Act. This is because section 37 states, ".... he as well as the body corporate, should be guilty of that offence and shall be liable to be proceeded and punished accordingly.

He stated that section 37 is an enabling provision giving power to bring within the grip of section 2 or 3 of tha Act appropriate individuals of a certain level of seniority in the employ of a guilty corporate defendant.

However, the defence counsel argued that the burden applies only to proceedings "from an offence ... consiting of a failure to comply with a duty or requirement so far as is ... reasonably practicable." - which she says is not what a 'section 37 offence is.

She also argued that there is no reverse burden of proof in relation to an employee's duty under section 7 of the Act and so why should there be one in relation to a company officer under section 37.

The trial judge followed a comment in the case of Davies and held that there was no reverse burden of proof in relation to section 37 and all parts of the offence must be proved by the prosecution.