Is there any hope of defeating an HSE prosecution?

For many companies, the disbelief of a first safety prosecution is difficult to get over. “Not us” companies say. “We are an honest business, we get things done by the book, we care about our workers.” The truth, when it settles in, is difficult to digest. Place yourself in their situation: Facing a health and safety executive (HSE) trial? If so, you’re a second- class civilian.

As you wait on a stiff bench in a court reception room, awaiting for your go, next to supposed thieves and frauds, bear in mind this: they will receive the first-rate service, the right to rely on antique legal entitlements but you, truthful, conscientious working manager, shall not. The most obvious legal right – the benefit of the doubt – is a stark example.

When a member of the police comes across you, for instance, in an alley, knife in hand, blood on you with a victim near by, you still have that basic right. To prosecute, the accusing have to prove the case beyond any possible doubt. The scene might be against you yet you still have the right to put the case in front of a board, to ask and raise doubt: “Are you sure it was not an accident?”

Occasionally in such situations, the jury won’t be certain. Surprise acquittals are not very common. Where HSE prosecutions are concerned, bad things really do come in threes.

Firstly, for the top breaches, all the prosecution has to do is prove ‘risk’. Usually this is not hard to do as there has been an accident – there must have been an occurring risk as an accident happened. Past that, it is down to yourself to show you took ‘all reasonably practicable steps’. Yet, while it is often very simple to see the easy things that could have stopped an incident after it happened – to make the correct decision with the help of reflection – it will be a lot harder to plan for all possible likelihoods before they take place.

The prosecution will provide some thought to predictability: it may be suggested that if a hazard was not foreseen or if it was a freak accident it wouldn’t have been reasonable to take steps before hand to prevent it.

Even this, though, is seen through the magic glasses of hindsight. To ask “should you have predicted, say, the fence falling down?” where the fence has fallen down (frequently depicted graphically and disturbingly with the victim there in court) is a very dissimilar thing from asking “is the fence likely to fall down?” theoretically before anything has gone wrong.

The next struggle is that you’re attempting to prove a negative. It helps to display the positives but it does not verify a negative. It helps to show the positives but it does not attest that you did not and should not have done more. The multiples of things you might have done is never ending.

Finally, there is the range of the breaches: the limited subject of an incident is just the start. In many cases, while the main reason an HSE inspector has been examining your risk assessment and method statements in every detail is due to a serious accident, that shall not prevent them from uncovering each unrelated violation they can find in your company. Why? Because any breach will do at these times.

The objective of the prosecution may be that a certain breach has caused an accident but absolutely every single breach will be attained in front of the HSE prosecution firing line. There is not a need to prove causation. After the verdict in the ‘R – v – Tangerine’ case, the prosecution can put the details of an accident in front of the jury as no more than a specimen of what can go awry. A series of minor breaches takes on an entire new significance against the backdrop of a severe accident. The exact legal question – “Did the defendant fail to avoid exposure to risk?” – is just the start of the story.

In summary, is it conceivable to defend a prosecution from the HSE? Yep – conceivable but incredible difficult. The best answer is to do everything you must to avoid an HSE trial – run regular health and safety courses, track worker’s training, examine and manage hazards, invest – and always be ready to act quickly and seek out legal counsel early on if needed. Early advice provides you with the best chance. Less than this mean little chance.

To gain more insight into how to avoid health and safety breaches and how to support compliance through e learning health and safety training, then click here

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